Shamrock Foods Company

National Labor Relations Board - Administrative Judge Opinions

Feb 11, 2016

28-CA-150157 (N.L.R.B. Feb. 11, 2016)

JD(SF)–05–16
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES,
SAN FRANCISCO BRANCH OFFICE
SHAMROCK FOODS COMPANY
and Case 28–CA–150157
BAKERY, CONFECTIONERY, TOBACCO
WORKERS’ AND GRAIN MILLERS
INTERNATIONAL UNION, LOCAL
UNION NO. 232, AFL-CIO-CLC
Sara S. Demirok, Esq., and Elise F. Oviedo, Esq.,
for the General Counsel.
Todd A. Dawson, Esq., and Nancy Inesta, Esq.
(Baker & Hostetler, LLP), for the Respondent Company.
Alan G. Crowley, Esq., and David A. Rosenfeld, Esq.
(Weinberg, Roger & Rosenfeld), for the Charging Party Union.
DECISION
Statement of the Case
JEFFREY D. WEDEKIND, Administrative Law Judge. The complaint in this case
alleges that Shamrock Foods Company committed numerous unfair labor practices at its Phoenix,
Arizona warehouse between January and July 2015 to discourage union or other protected
activity, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act. Among
other things, it alleges that the Company, by and through over 10 different managers and
supervisors, unlawfully interrogated, surveilled, and threatened employees, solicited employee
complaints and grievances, promised and granted employees better wages and benefits, took
union flyers away from employees, and discharged or disciplined two prounion employees
(Thomas Wallace and Mario Lerma). It also alleges that the Company unlawfully maintained
numerous overbroad rules in its employee handbook during the same period.1

1 The complaint issued on July 21, 2015, and was subsequently amended on August 13 and at
the hearing. See GC Exhs. 1(g), (m), (t); and Tr. 19–23, 750. The Board’s jurisdiction is
undisputed and well established by the admitted facts.
JD(SF)–05–16
2
A hearing on the complaint allegations was held over 7 days between September 8
and September 16, 2015. 2 Thereafter, on November 25, the General Counsel and the Company
filed posthearing briefs. After carefully considering those briefs and the record as a whole, for
the reasons set forth below I find that the Company violated the Act substantially as alleged,
committing over 20 unfair labor practices during the union campaign, including unlawfully 5
discharging Wallace and disciplining Lerma, and unlawfully maintaining several overbroad
confidentiality, blogging, solicitation/distribution, and other conduct rules in the employee
handbook.3
I. BACKGROUND10
Shamrock Foods operates food distribution warehouses in several states. In addition to
the subject warehouse in Phoenix, Arizona, the Company has warehouses in California,
Colorado, New Mexico, and Oregon. The Phoenix facility is the largest, with approximately 280
warehouse workers, including pickers, runners, throwers, and forklift operators, and 250 drivers.415
In 1998, the Teamsters Union attempted to organize the Phoenix warehousemen and
drivers. The Company committed several unfair labor practices in response to the organizing
campaign, including unlawfully discharging an employee. See Shamrock Foods Co., 337 NLRB
915 (2002), enfd. 346 F.3d 1130 (D.C. Cir. 2003). And the organizing campaign was ultimately 20
unsuccessful.

2 Pursuant to the General Counsel’s unopposed request, at the end of the last day of hearing
on September 16, the record was held open indefinitely to allow the Regional Office additional
time to investigate a new charge the Union had filed the previous day seeking a remedial
bargaining order under NLRB v. Gissel Packing Corp., 395 U.S. 575 (1969). Thereafter, the
Respondent requested that three additional documents be included in the record. As there was no
objection, the request was granted by order dated October 21, and the documents were admitted
as Respondent exhibits 6, 7, and 8. The order also added certain related documents as ALJ
exhibits 1–5. Finally, as the Union had recently withdrawn the Gissel charge, the order closed
the hearing record. Thereafter, on November 25, the General Counsel moved to correct the
record to include certain attached documents that had been inadvertently omitted from General
Counsel exhibit 2. As the motion is consistent with the record and unopposed, it is granted. The
record is therefore corrected to include the documents as General Counsel exhibits 2(b)–(f).
3 Specific citations to the transcript and exhibits are included where appropriate to aid review,
and are not necessarily exclusive or exhaustive. In making credibility findings, all relevant
factors have been considered, including the interests and demeanor of the witnesses; whether
their testimony is corroborated or consistent with the documentary evidence and/or the
established or admitted facts; inherent probabilities; and reasonable inferences that may be drawn
from the record as a whole. See, e.g., Daikichi Corp., 335 NLRB 622, 633 (2001), enfd. 56 Fed.
Appx. 516 (D.C. Cir. 2003); and New Breed Leasing Corp. v. NLRB, 111 F.3d 1460, 1465 (9th
Cir.), cert. denied 522 U.S. 948 (1997).
4 Although the Company often refers to its warehouse workers as “associates,” they are
consistently referred to here using the more traditional, statutory term “employees” to avoid any
confusion.
JD(SF)–05–16
3
More recently, in mid to late 2014, the Teamsters also attempted to organize the
Shamrock warehouse in southern California. Around the same time, in late November, Steven
Phipps, a longtime forklift operator at the Phoenix warehouse, decided to contact a different
union—Bakery, Confectionery, Tobacco Workers’ and Grain Millers (BCTGM) Local 232—
about representing the Phoenix warehouse workers. The Union advised Phipps to keep the 5
campaign “covert” at the beginning, and Phipps followed this plan throughout the following
December, January, and February. He only spoke or met with one or a few employees at a time
that he trusted and believed would sign a union card, and always offsite, never in the warehouse
or parking lot.
10
Nevertheless, by late January 2015, word of the union campaign was spreading “like
wildfire” in the warehouse. Over the next few months, more and more employees also began
attending offsite meetings. Accordingly, on April 26 and 27, Phipps made a formal, public
announcement in the breakroom about the campaign. (Tr. 485, 494–499, 520–521, 544–545,
612–617.) 15
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Alleged Unlawful Statements at Company Meetings
20
The complaint alleges that many of the unlawful threats and other statements were made
at seven large or small group meetings between late January and late April 2015 that were
conducted by one of three corporate or local managers: Vice President (VP) of Operations Mark
Engdahl, then-Human Resources (HR) Director Natalie Wright, or Phoenix Warehouse Manager
Ivan Vaivao. All but one of the meetings (a small meeting in mid-February) were secretly 25
recorded by Phipps or Lerma, and both the recording and a certified transcript thereof were
placed in evidence by the General Counsel.
1. January 28 town hall meeting (Engdahl)
30
The complaint alleges that the Company made unlawful statements at two meetings on
January 28. The first was a large “town hall” meeting with all of the warehouse workers that was
conducted by Operations VP Engdahl that morning. Engdahl runs all of Shamrock’s operations,
and reports directly to Company President/CEO William (Kent) McClelland. The General
Counsel alleges that Engdahl unlawfully threatened employees at the meeting that they would 35
lose benefits if they supported a union by telling them that the “slate is wiped clean” on wages,
benefits, and working conditions when collective bargaining begins (GC Exh. 1((g), par. 5(g)(1)).
Engdahl began the meeting by saying he was going to “educate” them about the southern
California Teamsters’ campaign and unions in general. He told them they could research “tons 40
of stuff” for and against unions on the internet to make their own judgments; however, he was
going to give them “the facts” and would “not lie” to them. He said the employees in southern
California had “made good decisions” and the facility there remained “union free.” He explained
that a union is simply “a business” that tries to grow and get more dues by misrepresenting that
they can fix all the employees’ problems, and would only “cause strife between both sides.” He 45
said Shamrock wanted to deal with employees directly “as a family,” and to fix problems by
“working together and talking to each other . . . we talk directly with you, you talk with us, you
bring up problems, we try to fix it.” He therefore encouraged the employees to continue using
JD(SF)–05–16
4
the Company’s “open-door” policy to raise their problems. He said the Company could “always
tweak things,” and wanted to “work to make things better.”
Engdahl also told the employees that there were various other reasons they should “think
long and hard” before signing a union card. He warned them that the card is a “legally binding 5
document” and that they were “going to pay hell trying to get it back.” He also said that a
company could voluntarily recognize the union if it got over 50 percent of employees to sign the
cards. He then stated,
And sometimes I’ve seen it in the past where companies have done that for 10
probably not really good reasons, because what happens when a company is
represented and you go into collective bargaining? The slate is wiped clean on
wages, the slate is wiped clean on benefits, the slate is wiped clean on working
conditions. It's all up to collective bargaining at that point in time. Right? So
sometimes a company may say, “You know what, I think we're paying too much 15
and our benefits are too rich; so I'm going to grab the union, bring them in here,
sign up with them, whether my associates like it or not, and we're going to
collective bargain.”
And guess what? At the other end of the pipeline, when you come out with
a contract, all of a sudden the people have got less wages, they took away 20
healthcare benefits, they did this, they did that. It actually saves companies
money because there's no guarantees when you go into collective bargaining that
you're going to come out with anything better than you got. In fact, you could
come out with something worse than what you got. And they won't tell you that
either. Okay. Everything is up for grabs. 25
Engdahl also returned to this point later, in response to a question from employee Wallace about
why Shamrock’s competitors are unionized. Engdahl said that, in his opinion, two of the
Company’s competitors (Sysco and US Foods) used the union “to keep the wages down because
everybody’s paid the same then . . . they don’t do well with incentives.” He also noted that it 30
takes a supermajority of “70 percent plus one” to decertify or vote a union out. (GC Exh. 8(a) and
(b).)5
Whether antiunion employer statements such as the “slate is wiped clean” in bargaining
are coercive depends on the context in which they are made. As the Board stated in BP Amoco, 35
351 NLRB 614, 617 (2007):
[E]mployer statements to employees during an organizing campaign to the effect
that bargaining will start from “zero” or from “scratch” are “dangerous phrase[s],”

5 I discredit the testimony of Natalie Wright, who as indicated above was the HR manager at
the time (and is now a part-time HR specialist). Wright attended the town hall meeting with
other managers, and was called to testify as an adverse witness by the General Counsel under
FRE 611(c). Wright repeatedly refused to say if unions were discussed at the meeting, insisting
that it was just an “educational” meeting, agreed to answer the General Counsel’s question only
when directed from the bench to do so, and then admitted only that unions were mentioned in a
video and in reference to the California campaign (Tr. 379–381). As indicated above, the audio
recording secretly made by Phipps shows that the meeting was entirely about unions.
JD(SF)–05–16
5
which carry with them “the seed of a threat that the employer will become
punitively intransigent in the event the union wins the election.”
Contemporaneous threats or unfair labor practices may lend additional coercive
meaning to the employer's remarks. Such statements are unlawful and
objectionable when, in context, “they effectively threaten employees with the loss 5
of existing benefits and leave them with the impression that what they may
ultimately receive depends in large measure on what the Union can induce the
employer to restore.” On the other hand, such statements are permissible when
they merely describe the bargaining process and/or are made in direct response to
union promises. Similarly, statements that employees could lose benefits as a 10
result of bargaining have been found lawful where they “merely [state] what
could lawfully happen during the give and take of bargaining.” [Citations
omitted].
Here, although some of Engdahl’s other statements at the meeting were untrue,6 there is
no allegation that they were unlawful.7 Further, Engdahl did not explicitly say that Shamrock 15
would take away existing benefits. However, by emphasizing, exclusively, what the other named
and unnamed employers have intentionally done to reduce employee benefits through collective
bargaining, Engdahl clearly suggested or implied that Shamrock would do the same thing. See
Pittsburgh Press Co., 252 NLRB 500, 504 (1980); and Madison Kipp Co., 240 NLRB 879 (1979)
(while an employer may lawfully support its antiunion statements with examples where 20
employees at other companies suffered negative consequences following collective bargaining, it
may not do so in a manner that employees would reasonably construe as a threat to deliberately
pursue the same result). Moreover, Engdahl made no effort at the meeting to dispel or temper
that implication by assuring employees that Shamrock would bargain over their benefits in good
faith and/or that their benefits might also go up or stay the same through the give and take of 25
bargaining. Compare, for example, Manhattan Crowne Plaza, 341 NLRB 619 (2004) (finding no
violation where the employer acknowledged that “each set of negotiations is different”); and
Monroe Mfg. Co., 200 NLRB 62 (1972) (same, where the employer stated, “That is not to say
that anything like that will happen here. We hope that even if this union is successful [we] will
continue to grow.”). 30
The Company’s posthearing brief (pp. 26–27) suggests that what Engdahl said or did not
say at the January 28 town hall meeting is insignificant, as Engdahl and other managers

6 For example, there is no “70 percent plus one” requirement to decertify a union. In fact,
there is no requirement that even 50 percent plus 1 vote against the union. The NLRB will
conduct a decertification election if 30 percent or more of the unit employees sign a petition to do
so, and the union will be decertified unless 50 percent plus 1 of the votes cast in the election are
in favor of union representation, i.e., the union loses in the event of a tie vote. See Best Motor
Lines, 82 NLRB 269 (1949); NLRB Statements of Procedure, Secs. 101.17–101.18; and the
Board’s website, https://www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-
represented-union/decertification-election.
7 The complaint also alleges that Engdahl “granted employees benefits” on January 28 by
telling employees who complained about working conditions to make an appointment to come
see him. See par. 5(g)(2). However, the General Counsel’s posthearing brief does not address
this allegation, and thus it appears to have been abandoned. In any event, the General Counsel
failed to carry the burden of proof and persuasion.
JD(SF)–05–16
6
repeatedly told employees at other meetings that their benefits could be better, worse, or the same
after going through the collective-bargaining process. However, there is no record evidence that
Engdahl or other managers actually said this to all of the warehouse employees at any other
meeting(s) during the relevant period. Although Phoenix Warehouse Manager Vaivao made such
a statement a month later, on February 24, it was at a much smaller meeting with only 8–10 5
employees. See Exh. 9(a), at p. 13; and Tr. 175–178, 528–530. 8 Moreover, as discussed below,
Vaivao made other statements at the February 24 meeting that were unlawful. And he, Engdahl,
and several other company managers and supervisors committed numerous other unfair labor
practices as well.
10
Under all the circumstances, therefore, it is likely that employees would have reasonably
understood Engdahl’s remarks, not merely as a caution that their benefits could go down, but as
an effective threat by a high-level manager that they would go down, if they supported a union.
Accordingly, the statements were coercive and unlawful.
15
2. January 28 roundtable meeting (Wright)
The second meeting on January 28 was a smaller “roundtable” meeting with 15–20
employees, including Phipps. The meeting was conducted by then-HR Manager Wright
immediately after the town hall meeting. It was the first of two such meetings Wright conducted 20
that day on different shifts, and the first of any such meeting she had conducted since October
2013, the year she was hired. The General Counsel alleges that Wright unlawfully solicited
complaints and grievances at the meeting and promised to remedy them if the employees
refrained from union activity (GC Exh. 1(g), par. 5(h)).
25
Wright began by acknowledging that it had “been a while” since the Company had held
roundtable meetings. She said that the Company was going to try and do it “a little bit more
often” to find out “what’s going on and . . . where [she] could help.” She also said the Company
was going to do it “a little bit differently” by having the meetings with smaller groups, as the
large meetings could be “a little cumbersome, a little bit overwhelming to deal with so much and 30

8 As noted by the Company, the record indicates that Vaivao and Engdahl held similar small
meetings with additional employees on different shifts. However, evidence fails to establish that
all of the warehouse employees attended the meetings or that Engdahl and Vaivao made the same
statements at all of the meetings. Engdahl testified that he always speaks off the top of his head
at the meetings (Tr. 732–735). And while Vaivao testified that he said wages could go up or
down or stay the same at other small “communication” meetings in February that were conducted
by Wright, he acknowledged that the meetings were not about the Union and he only made the
statement if one of the employees raised the issue (Tr. 899–901, 931). See also GC Exh. 7(a), the
transcript of the recording of the February 5 communication meeting (which confirms that the
issue never came up and Vaivao did not make such a statement). Finally, contrary to the
Company’s contention (Br. 28 n. 8), the record is also insufficient to establish that the Union
contumaciously failed to produce recordings from the other meetings (i.e. recordings of meetings
other than those made by Phipps or Lerma that were put in evidence by the General Counsel) in
response to the Company’s hearing subpoena. Accordingly, the Company’s request for an
adverse inference that recordings of other meetings would “corroborate the noncoercive context
of Shamrock’s discussions with employees concerning the possible results of unionization” is
denied.
JD(SF)–05–16
7
trying to filter out what [the] top 10 issues were out of 250 people.” Wright advised them that
she had “made sure” their names would not be revealed to “management” so that they would feel
more comfortable speaking up at the meeting.
Wright then asked for their “feedback” on recent changes, what they liked and disliked, 5
and “recommendations [for] more changes.” Employees voiced various complaints in response,
including that there were no written guidelines or standard procedures for implementing the
changes; that their tools and equipment (forklifts, pallet jacks, radios, and scanners) were old and
poorly maintained; that there were too few quality controllers scheduled per shift; that they were
averaging a lot less money under the new pay plan; that they had to move more heavy pallets10
every day without any incentives or increase in pay; and that supervisors and managers insulted,
disrespected, and lied to them, and failed to respond when they raised problems using the
Company’s “open door” policy.
Wright’s assistant took notes of the complaints, and Wright thanked the employees for 15
their feedback and time. Wright thereafter took the complaints to upper management. (GC Exh.
15(a) and (b); Tr. 362, 383–390, 504.)
An employer’s solicitation of employee grievances during a union campaign inherently
includes an implied promise to remedy them and is unlawful unless the employer has a “past 20
policy and practice” of soliciting grievances and did not “significantly alter[] its past manner and
methods” of doing so. See, e.g., Manorcare Health Services-Easton, 356 NLRB 202 (2010);
Barberton Manor, 252 NLRB 380 (1980); and Carbonneau Industries, 228 NLRB 597, 598
(1977).
25
Here, as indicated above, the Teamsters had recently campaigned to organize Shamrock’s
warehouse in southern California. And the Company was obviously aware of it and concerned
about the campaign spreading to the Phoenix warehouse, which the Teamsters had also tried to
organize in the past. Further, there was, in fact, a union campaign ongoing at the Phoenix
warehouse at the time; it was just by a different union, BCTGM Local 232. Although the 30
campaign was still covert at that time, and there is no direct evidence that the Company knew
about it, there is strong circumstantial evidence that the Company at least suspected it was going
on. As indicated above, the antiunion town hall meeting with all of the warehouse employees
was held shortly after word of the campaign began spreading “like wildfire” through the
warehouse. Further, the Company held the antiunion meeting at that time even though, according 35
to Engdahl’s own report, the Teamsters campaign in California had already failed.
As for the Company’s past practice, there is no dispute that the Company had a history of
holding roundtable meetings with employees. Phipps himself testified that the Company had
held hundreds of roundtable meetings at the warehouse over the 20 years he had worked there. 40
However, the meetings were usually held to communicate information to employees, and only
sometimes to solicit their feedback.9 Further, no such meeting had been held in the past 15
months. And, as indicated by Wright’s own comments, the January 28 roundtable meeting was
both intended and presented as the first in a series of more frequent, smaller meetings with

9 Tr. 573–575. I discredit Wright’s testimony to the extent it indicates that soliciting
employee complaints was standard practice at the roundtable meetings (Tr. 383–388). As
previously noted (fn. 5), Wright was not a credible or reliable witness.
JD(SF)–05–16
8
employees to solicit their feedback.10 Thus, the meeting represented a significant departure from
past practice. Moreover, it was held immediately after the antiunion town hall meeting, where
Engdahl had assured all the warehouse employees that they did not need a union because they
could talk directly to the Company and it would try to fix any problems they raised. Thus, it is
unlikely that the connection between the two would have been lost on employees.5

Accordingly, Wright’s solicitation of the employees’ complaints violated Section 8(a)(1)
of the Act as alleged.
3. February 5 communication meeting (Vaivao)10
The February 5 meeting was even smaller than the January 28 roundtable meeting, with
only about 10 employees. Although HR Manager Wright again attended and occasionally spoke,
the meeting was conducted by Phoenix Warehouse Manager Vaivao.11 The General Counsel
alleges that, like Wright on January 28, Vaivao unlawfully solicited complaints and grievances at
the meeting and promised to remedy them if the employees refrained from union activity (GC 15
Exh. 1(g), par. 5(k)).
Vaivao began by saying that it was a “communication follow-up meeting” to the prior
roundtable meetings. Like Wright on January 28, he also explained why the smaller meetings
were being held. He said that the Company had “decided” to have the smaller meetings after the 20
town hall meeting “to be a little bit more intimate” so that employees would be more willing to
speak up and tell the Company about “some of the issues that [are] out there, some of the
obstacles that [Wright] and I can remove or report . . . to make sure those are removed.” He said
he wanted them to give him “feedback” on “what is really bothering” the employees; what the
“main concerns” and “big issues” were. He assured them that he would take notes of their 25
complaints and get back to them about whether the matter was “fixed” or not and why. He said
the Company was “commit[ted]” to removing “most of the obstacles, as much as we can.”
As on January 28, employees voiced various complaints in response, including about
wages and benefits, working conditions, scheduling, and the “open door” policy. Vaivao advised 30
them that he and Wright would “make sure” the Company “heard” their concerns and “in some
cases “bring [] down a solution to resolve” them. With respect to the scheduling issues in
particular, he said he would “definitely look into” them and “make adjustments.” (GC Exh. 7(a),
(b); Tr. 523–524.)12

10 Although the Company denied in its answer that Operations Vice President Engdahl and
HR Manager Wright were supervisors, it stipulated to their supervisory status at the hearing
(Tr. 5–6, 20–21, 53, 65–66, 117). Their statements at the January 28 meetings are therefore
nonhearsay party admissions under FRE 801(d)(2). See, e.g., Ferguson Enterprises, 355 NLRB
1121 n. 2 (2010).
11 As with Engdahl and Wright, the Company denied in its answer that Vaivao was a
supervisor, but stipulated to his supervisory status at the hearing.
12 I discredit Vaivao’s testimony about the February 5 meeting (Tr. 164–170, 175, 262–266).
Like Wright, Vaivao was called as an adverse witness by the General Counsel during the case in
chief. And like Wright’s testimony about the January 28 town hall meeting, Vaivao’s testimony
about his role at the February 5 meeting, whether he solicited employee complaints, and whether
any complaints were elicited, is clearly contradicted by the audio recording of the meeting
JD(SF)–05–16
9
The only significant difference between the context and circumstances of Vaivao’s
solicitation of employee complaints and Wright’s similar solicitation a week earlier is that
Vaivao’s promise to remedy the solicited complaints was more explicit. Accordingly, it was
unlawful as well.
5
4. Mid-February union education meeting (Vaivao)
Vaivao thereafter also conducted so-called “union education” or “union prevention”
meetings with small groups of employees, including one that employee Wallace attended with
about eight other employees in mid-February.13 The General Counsel alleges that Vaivao again
unlawfully solicited complaints and grievances at the mid-February meeting and promised to 10
remedy them if the employees refrained from union activity (GC Exh. 1(g), par. 5(l)).
The only evidence presented and cited by the General Counsel to support this allegation is
Wallace’s testimony that Vaivao “opened the floor to questions” after showing them an antiunion
video, and that he “wanted to know if there [were] any issues that we wanted to bring up” after 15
Wright explained to them how their pay and benefits compared to others in the industry (Tr. 653–
654).14 While there is nothing incredible about this testimony, it is too vague or sketchy to
establish that Vaivao actually solicited complaints or grievances as at the February 5
communication meeting. Accordingly, the allegation is dismissed.
20
5. February 24 union education meeting (Vaivao)
Vaivao also held several small meetings on February 24, including one that Phipps
attended with eight other employees. The General Counsel alleges that Vaivao committed two
additional violations at that meeting: first, that he unlawfully created an impression that the
employees’ union activities were under surveillance by telling them that the Company had an 25
idea who was organizing; and second, that he unlawfully asked the employees to ascertain and
disclose the union activities of other employees by asking them to raise their hand to let him
know if another employee had contacted them (GC Exh. 1(g), par. 5(m)(1), (2)).
Vaivao began by saying that it was another “union education” meeting so that the30
employees knew the “essentials.” He said that employees, and even a meat plant manager, had
recently come up to tell him and Brian Nicklen, the inbound manager, that they were being
approached by union supporters, “so we kind of have some ideas . . . of who’s out there.” He
also said that some had expressed concern that they might be seen talking to the union supporters
on the Company’s surveillance cameras. He assured the employees that the Company does not 35
use the cameras to conduct surveillance of such activities. Vaivao also told the employees that, if
they did not want to sign a union card or be approached anymore, “tell them no, you won’t be a
part of it [and] [r]aise your hand, say, hey, man, this guy is bugging me.” He then listed various

secretly made by Phipps.
13 I discredit Vaivao’s testimony (Tr. 155–156) that no such “union education” or “union
prevention” meetings were held, as the record as a whole clearly establishes otherwise. See, e.g.,
GC Exhs. 9(a), (b), and 10(a), (b), the recordings and transcripts of his subsequent remarks at the
February 24 and March 26 meetings, discussed infra.
14 Unlike the other meetings at issue, there is no audio recording of the mid-February meeting
(apparently because neither Phipps nor Lerma attended it).
JD(SF)–05–16
10
reasons why they should be cautious or wary of supporting a union.15 As at the mid-February
educational meeting, he also showed them an antiunion video. (GC Exh. 9(a), (b); Tr. 529–530.)16
An employer unlawfully creates an impression of surveillance when employees would
“reasonably assume” from the employer’s statements that management had placed their union 5
activities under surveillance, i.e. that “members of management are peering over their shoulders,
taking note of who is involved in union activities, and in what particular ways.” Flexteel
Industries, 311 NLRB 257 (1993). Thus, there is no violation where the employer’s statements
indicate that the information concerning the employees’ union activities was voluntarily provided
to the employer by their coworkers. See, e.g., North Hills Office Services, 346 NLRB 1009, 1103 10
(2006) (supervisors’ statements to employees that two of their coworkers had reported that they
had driven employees to a union meeting or distributed union literature during working hours did
not unlawfully create an impression of surveillance in the absence of any evidence that
management solicited the information); and Bridgestone Firestone South Carolina, 350 NLRB
526 (2007) (plant manager’s letter to employees thanking “the many team members who have 15
chosen to provide information to me regarding the recent [union organizing campaign]” did not
unlawfully create the impression of surveillance). Here, Vaivao’s statements indicated that he
knew about the employees’ union activities because employees and a manager had voluntarily
informed him and Nicklen after being approached by union supporters. Accordingly, this
allegation is dismissed.20
On the other hand, Vaivao’s additional statement during his antiunion presentation, that
employees who receive unwanted solicitations should “raise [their] hand” and let management
know the union supporters are “bugging” them, was clearly unlawful under Board precedent.
See, e.g., Sunbeam Corp., 284 NLRB 996, 997 (1988) (company president unlawfully asked 25
employees to report the identity of union supporters by advising them to “tell these union pushers
[to] . . . just go away and leave you alone, [and] [i]f they won’t leave you alone, let me know
about it, and we will see that something is done,” as the request was broad enough to cover
protected union solicitation); and Hawkins-Hawkins Co., 289 NLRB 1423 (1988) (plant manager
unlawfully told employees that “if anyone was harassed by the union or by fellow employees” 30
they should “contact management and they would take care of it,” as the manager did not explain
what he meant by “harassment”). See also Winkle Bus Co., 347 NLRB 1203, 1204 (2006);
Bloomington-Normal Seating Co., 339 NLRB 191, 193 (2003), enfd. 357 F.3d 692 (7th Cir.
2004); and Tawas Industries, 336 NLRB 318. 322 (2001), and additional cases cited there. 17
Accordingly, that allegation is sustained.35

15 For example, like Engdahl at the January 28 antiunion town hall meeting, Vaivao told the
employees that it would take “70 [percent] plus one” to vote a union out. As previously noted
(fn. 6), however, this is untrue.
16 Again, I discredit Vaivao’s testimony about the meeting (Tr. 175–190), as it is contradicted
by the recording and transcript of the meeting and other evidence consistent therewith.
17 Although Vaivao testified that an employee had complained that union supporters had
harassed him by throwing pens at him when he refused to sign a card (Tr. 182), Vaivao did not
mention this at the meeting. Nor does the Company’s posthearing brief cite any other basis to
distinguish the cited Board precedent; indeed, the brief does not even address the allegation.
JD(SF)–05–16
11
6. March 26 union prevention meeting (Vaivao)
Vaivao held another meeting on March 26 with a small group of employees, including
Lerma. James Allen, a new HR representative at the time, was also present. The General
Counsel alleges that Vaivao made several more statements at the meeting that unlawfully created
the impression of surveillance; specifically, that the Company knows everything that is going on 5
and who they are, that there was a union meeting off the property a few weeks earlier, and who
attended the meetings (GC Exh. 1(g), par. 5(n)).18
Vaivao began by saying that it was another “union prevention” meeting. He said the
Company was continuing with such meetings because employees were “getting fed up” with the 10
union supporters. He said three employees had come up to him that week complaining about
being approached to join the Union and asking him if he could make them stop. Vaivao
explained that the union supporters had the right to organize. However, he said they were
“disgruntled” and had “personal agendas” against the Company. He said, “We know that. We
know who they are. We know they’ve been conducting meetings offsite.” Vaivao said that the 15
union supporters were spreading “lies” and that there was nothing to “substantiate” what they
were “throwing out there.” He said it was his job to “protect” employees by telling them the
“truth.” He then repeated that,
[W]hoever is doing that out there, we know who they are, because they come the 20
next day to me. They come the next day to tell me that. . . . So I know who they
are. I know there’s meetings out there. I know there was a meeting a . . . few
weeks ago. And I know who attended.
Vaivao repeated the same point twice more later in the meeting. Thus, after Allen 25
had finished introducing himself and addressing the employees, Vaivao said,
I appreciate everybody showing up. . . . But we’re going to continue to have all
the meetings. As long as there’s guys out there, I’m going to review propaganda
for the union organizers. . . . I know who they are. I know exactly who they are. 30
I know who’s been asked, the guys . . . So know that I’m out there. I’m going to
be vigilant. . . .I’m going to be vigilant, because I know what the truth is.
And at the very end of the meeting, after again discussing some of the reasons not to support a
union,19 he said,35

18 Although the complaint alleges that Vaivao, Nicklen, and an unknown HR representative
committed the alleged violations at the March 26 meeting, the General Counsel’s posthearing
brief identifies only Vaivao as the offending speaker. The complaint (par. 5(o)) also alleges that,
on the same date, Vaivao, Nicklen and an unknown HR representative informed employees that it
would be futile for them to select the Union as their bargaining representative by telling
employees that shifts cannot be changed. However, the General Counsel’s posthearing brief does
not address this additional allegation, and it therefore appears to have been abandoned. In any
event, the General Counsel has failed to carry the burden of proof and persuasion.
19 For example, Vaivao again incorrectly told the employees that it takes “70 percent plus
one” to vote a union out.
JD(SF)–05–16
12
And you should feel that way. You should stand there and tell whoever it is, dude
no. If you talk to me again—several guys are . . . coming up to me and say[ing] I
want . . . a statement that these guys will leave me alone. . . . So that’s where
we’re at right now. Until we have that, we have a little different conversation
with them. But we know who the guys are. I want you guys to be aware of that. I 5
want you guys to understand that.
(GC Exh. 10(a), (b).)
As discussed above, an employer’s statements concerning its knowledge of employees’ 10
union activities do not unlawfully create the impression of surveillance where the statements
indicate that the information was voluntarily provided to the employer by their coworkers. Here,
as at the February 24 meeting, Vaivao indicated that employees who did not support the Union
had voluntarily provided the information to management about who the union supporters were
and who attended the meetings. Accordingly, these allegations are likewise dismissed.15
7. April 29 communication meeting (Engdahl)
The Company held another small communication meeting on April 29 with about 8–10
mostly senior employees from the first shift, including Phipps. Both Vaivao and Operations VP
Engdahl attended and spoke at the meeting. The General Counsel alleges that Engdahl made 20
several unlawful statements during the meeting; specifically, that he unlawfully promised and
granted benefits to employees by guaranteeing or committing to them that there would not be a
layoff during the slow summer season like the previous year; created the impression of
surveillance by telling employees that the Company understood who was behind the Union;
threatened employees with unspecified reprisals by telling them the Union will hurt them and 25
everybody in the future; and informed employees that it would be futile for them to support the
Union by telling them that the Company does not have to agree to anything through collective
bargaining (GC Exh. 1(g), par. 5(t); Tr. 19–23).
Engdahl began the meeting by handing out a document, which he said was “going out to 30
every person in this building.” He said the document was a “follow-up” on the issue of layoffs
that had been discussed in previous meetings and “some other things last year that we felt we
didn’t handle correctly.” He then stated,
So, we’re committed to the point where we put it in writing now, okay,
that we will not do these things. And you can take that to the bank. So, we owed 35
you that feedback, now we’ve given it to you. It’s in writing. And it’s probably
not so important for you all. It’s more of a lower on the totem pole for folks who
were worried about layoffs and things like that. Well, so this will ease some of
their fears.
But, I wanted to start by giving this all to you all and have a little 40
discussion with you on what’s going on here with this union organizing stuff,
okay. And I understand who’s behind it. I understand that you don’t care what
anybody else thinks. I understand that you’re doing it for your own personal
reasons, and that’s great, have at it. But, what I am going to do is straighten out
some things with some facts, okay, and some truths. And I’m going to call 45
bullshit on a lot of stuff that’s being spread, because its wrong. It will hurt
JD(SF)–05–16
13
Shamrock. It will hurt all of you. It will hurt everybody in the future, okay. And
I don’t want that to happen.
This is all my opinion. And I’m entitled to my opinion, just like you’re
entitled to yours, okay. I’ve been a Teamster for seven years. I was in the union
for seven years. I understand it inside and out. I know what it’s good for and 5
what it’s not good for. And it’s not good for us here at Shamrock, I can tell you
that, okay.
Engdahl then discussed various reasons why, in his “opinion,” the Union would not be
good for them. For example, he said that the Union would never negotiate a higher wage rate for 10
them than at Sysco or U.S. Foods; that nothing would change with respect to their health
insurance because it is mandated by “Obamacare” and there was only one “bucket of money” to
divide up between wages, benefits, and equipment to run the warehouse; and that “nobody can
say whether [a union contract] would be better or worse.” He then closed by saying,
15
Remember, the company pays wages, benefits, sets work conditions—not the
union. The only thing the union can do is come to collective bargaining and ask.
They can ask for things. The company doesn’t have to agree to anything,
nothing—other than what they want to. It’s bargaining. Bargaining can go on
forever. It can never end. It’s collective bargaining. All you have to do is 20
bargain in good faith. All right?
(GC Exh. 12(a), (b).)20
It is well established that an employer violates Section 8(a)(1) of the Act by promising or
granting benefits during a union campaign in order to dissuade its employees from supporting the 25
union. See, e.g., Sisters Camelot, 363 NLRB No. 13, slip op. at 7 (2015) (“The lawfulness of an
employer’s promise of benefits during a union organizational campaign depends upon the
employer’s motive. Thus ‘[a]bsent a showing of a legitimate business reason for the timing of a
grant of benefits during an organizing campaign, the Board will infer improper motive and
interference with employee rights under the Act.’”); Network Dynamics Cabling, Inc., 351 30
NLRB 1423, 1424 (2007) (the Board examines “the record evidence as a whole, including any
proffered legitimate reason for [granting the benefit], to determine whether “it supports an
inference that [it] was motivated by an unlawful purpose”); Real Foods Co., 350 NLRB 309, 310
(2007) (“The granting of benefits to employees in the middle of union organizational activity ‘is
not per se unlawful where the employer can show that its actions were governed by factors other 35
than the pending election.’ The General Counsel bears the burden of proving, by a preponderance
of the evidence, ‘that employees would reasonably view the grant of benefits as an attempt to
interfere with or coerce them in their choice on union representation.’ If the General Counsel
makes such a showing, the burden shifts to the employer to demonstrate a legitimate business
reason for the timing of the benefit, such as by proving that the benefit was ‘part of an already 40
established Company policy and the employer did not deviate from the policy upon the advent of
the union.’”); and Donaldson Bros. Ready Mix, 341 NLRB 958, 961–962 (2004) (“[A] grant of

20 As indicated above, Vaivao also spoke at the meeting, addressing various “rumors” and
statements by union supporters that he said were “not true.” Again, I discredit Vaivao’s and
Engdahl’s testimony about what they said at the meeting (Tr. 225–234, 740–741), as it is clearly
contradicted by the recording and transcript.
JD(SF)–05–16
14
benefits . . . during a union organizing campaign violates the Act unless the employer can
demonstrate that its action was governed by factors other than the pending election. To meet this
burden, the employer needs to establish that the benefits conferred were part of a previously
established company policy and the employer did not deviate from that policy on the advent of
the union.”) (Citations and footnotes omitted).5
Engdahl’s no-layoff commitment was clearly unlawful under these principles. First, it
plainly constituted a promise or grant of a substantial benefit.21 Hertz Corp., 316 NLRB 672, 688
(1995); and Justrite Mfg. Co., 238 NLRB 57, 61 (1978). Second, there is no dispute that the
union campaign was well underway at that point and that the Company knew about it.22 Indeed,
the Company had been holding meetings with employees for the past 2 months to address and 10
respond to the campaign. Moreover, Phipps had announced the union campaign in the
breakroom just a few days earlier, on April 26 and 27, and Engdahl again specifically addressed
the campaign immediately after announcing and distributing the no-layoff commitment. Third,
Engdahl acknowledged at the hearing that the Company had never made such a written
commitment in the past, notwithstanding that there had occasionally been other layoffs (Tr. 759). 15
As for general assertions of harm resulting from union organizing, while not unlawful by
themselves, such assertions may become unlawful “if uttered in a context of other unfair labor
practices that ‘impart a coercive overtone’ to the statements.” Reno Hilton Resorts Corp., 319
NLRB 1154, 1155 (1995) (citations omitted). Thus, in Reno Hilton the Board found that the 20
employer’s vague assertion that the “union would not benefit you in any way and could hurt you
seriously” was unlawful in light of the employer’s numerous other unfair labor practices,
including threats of closure, discharge, and loss of benefits, which gave the assertion “both
specificity and force.” Accord: Homer D. Bronson Co., 349 NLRB 512, 540–541 (2007) (finding
employer’s statement that the union was “just going to hurt” unlawful for the same reason), enfd. 25
273 Fed. Appx. 32 (2d Cir. 2008).23
Here, Engdahl’s statement to employees that supporting the Union “will hurt” them in the
future was likewise made in the context of numerous other unfair labor practices. Indeed, as
discussed above, Engdahl himself had previously threatened all of the employees at the January 30
28 town hall meeting with loss of benefits if they supported the Union. Moreover, as fully
discussed infra, just a few weeks before the April 29 meeting, the Company unlawfully

21 Although the actual document containing the written commitment is not in evidence,
Engdahl’s above-quoted statements to employees at the meeting—that the Company was
“committed” to no layoffs “to the point where we put it in writing,” and that they could “take that
to the bank” —are sufficient to establish the promise or grant of benefit. It is therefore
unnecessary to pass on the General Counsel’s request (GC Br. 20 n. 21) for an adverse inference
based on the Company’s failure to produce a copy of the document in response to paragraph 37
of the General Counsel’s August 25 subpoena duces tecum (GC Exh. 2(e), attachment 1, p. 6).
22 See Hampton Inn NY-JFK Airport, 348 NLRB 16, 17 (2006) (grant of benefits during
union campaign is not unlawful unless employer was aware of it).
23 See also Downtown Toyota, 276 NLRB 999 (1985), cited by the General Counsel, where
the Board affirmed the judge’s finding that the employer’s statements that the union is “only
going to hurt you guys” and “I’ll make more money and you guys will make less” were unlawful
threats of unspecified reprisal and/or of futility.
JD(SF)–05–16
15
discharged one of the more active union supporters (Wallace) after he openly complained about
the Company’s health benefits.24 Accordingly, as in Reno Hilton, the statement violated the Act.
With respect to statements about the bargaining process, the lawfulness of such
statements may depend on both their content and their context. See Airtex, 308 NLRB 1135 n. 2 5
(1992). Compare also Medieval Knights, LLC, 350 NLRB 194, 195 (2007) (finding no
objectionable conduct where the employer, which had not committed any other objectionable or
unlawful conduct, stated during a hypothetical exercise that an employer does not have to agree
to any specific proposals, that all negotiations were different, that the bargaining process could
take weeks, months, or even more than a year, and that an employer could “stall out the 10
negotiations” by “giving in to lesser items or addendums” “that would make them show they
were bargaining in good faith but not really getting anything done”), with Kajima Engineering,
331 NLRB 1604, 1616 (2000) (finding a violation where the employer, which committed
numerous other unfair labor practices, stated during a preelection mandatory meeting that the
company “could drag their heels and make it go on forever” and just had to “show good faith 15
efforts of negotiations for at least an hour per month”).
Here, as discussed above, Engdhal made the statement (“The company doesn’t have to
agree to anything, nothing . . . Bargaining can go on forever. It can never end . . . All you have to
do is bargain in good faith”) after unlawfully telling employees that supporting the Union “will
hurt” them in the future. Moreover, he had previously unlawfully threatened employees at the 20
January 28 town hall meeting with loss of benefits if they supported the union. Thus, considered
in context, Engdahl’s statement would reasonably be viewed by employees, not as a mere
hypothetical like in Medieval Knights, but as the handwriting on the wall like in Kajima.
Accordingly, it violated the Act as well.
As for Engdahl’s statement that he understood who was behind the union campaign, as 25
previously discussed Vaivao had repeatedly stated in prior meetings in both February and March
that employees had volunteered such information to management. Moreover, as indicated above,
Phipps had recently announced that he was behind the campaign. Thus, even if some of the
employees at the April 29 meeting had not attended Vaivao’s prior meetings, it is unlikely they
would reasonably assume at that point that the employer had obtained the information through 30
surveillance. Accordingly, like the similar allegations regarding the February and March
meetings, this allegation is dismissed.
B. Other Alleged Unlawful Statements or Conduct
The complaint also alleges numerous other incidents during the same period (January–35
July 2015) where managers or supervisors made unlawful statements to employees or engaged in
other unlawful conduct. The complaint alleges that these additional violations were committed
by various managers and supervisors at all levels of the Company, including President/CEO Kent

24 Given this background of other unfair labor practices, the formal nature of the meeting, and
Engdahl’s high-level corporate position, it makes no difference that Engdahl couched the
statement and other imparted “truths” as his “opinion.” See generally Saint Luke's Hospital, 258
NLRB 321, 322 (1981); and J.S. Abercrombie Co., 83 NLRB 524, 530 (1949), affd. per curiam
180 F.2d 578 (5th Cir. 1950). Nor does the Company argue otherwise; its posthearing brief does
not specifically address the allegation.
JD(SF)–05–16
16
McClelland, Operations VP Engdahl, Warehouse Manager Vaivao, Safety Manager Joe
Remblance, Inbound/Receiving Supervisor Dave Garcia, Outbound/Shipping Supervisor Jake
Myers, Sanitation Supervisor Karen Garzon, and Floor Captains Zack White and Art Manning.
1. January 25 conversation (White)
The General Counsel alleges that, on January 25 (3 days before the January 28 town hall 5
meeting), Floor Captain White unlawfully interrogated Phipps about the employees’ union
activities and created the impression of surveillance by telling him that there were rumors in the
warehouse about the organizing campaign (GC Exh. 1(g), par. 5(f)). The Company disputes both
that the floor captains are supervisors within the meaning of the Act and that White made any
unlawful statements during his conversation with Phipps.10
As indicated above, Phipps is a longtime forklift operator at the warehouse and was the
person who contacted BCTGM Local 232 in November 2004. He reports to Johnny Manda or
Richard Gomez, whom he considers his immediate supervisors. He and other warehouse
employees also receive assignments and directions from floor captains, including White and 15
Manning, both of whom work on the loading dock. The floor captains’ job is to expedite and
make the work run smoothly. They do so by assigning or reassigning employees to particular
areas or routes at particular times, directing the warehouse workers to perform particular tasks,
and by deciding when to send an employee home or keep them late after their shift. They issue
such assignments and directions based on their own judgment of who is best able to perform the 20
work, regardless of whether the task or assignment is consistent with that individual’s job
description or prepared schedule for the day, and without consulting or seeking permission from
anyone. And they are held responsible by the warehouse managers, who they meet with on a
weekly basis, if there is an interruption or delay in the workflow.25
25
On January 25, Phipps happened to run into White at the time clock as they were both
arriving for work. As they walked together to their respective work areas, White asked Phipps if
he had heard about the union organizing in California. Phipps said he had heard rumors about it.
White said the Teamsters were openly handing out cards to the drivers at the gates there. He told
Phipps there were rumors that there was also an organizing campaign in the Phoenix warehouse. 30
Phipps asked what White what he knew about it, as he did not want to have the Teamsters there.
White said he had heard rumors that whoever was organizing was getting really close to getting a
union in. He asked Phipps if he knew anything about it. Phipps did not directly reply, but said
he remembered that the Company had unlawfully fired employees for supporting the Teamsters
organizing attempt in 1998; that he knew what his rights were; and that he wanted to protect 35
himself.26

25 The foregoing findings regarding the floor captains’ supervisory authority and duties are
based on the credible testimony of Phipps (Tr. 485–492), Wallace (Tr. 647–648), and Lerma
(764–766, 773, 779, 852) regarding their personal experiences and observations while working
with White, Manning, and the other floor captains.
26 The foregoing summary of the January 25 conversation is based on Phipps’ testimony (Tr.
499, 612–617) and his May 2015 pretrial affidavit (R. Exh. 1, at 20). The Company did not call
White to testify about the conversation.
JD(SF)–05–16
17
Under Section 2(11) of the Act, an individual is a supervisor if he/she possesses, in the
interest of the employer, at least one of the types of authority listed therein.27 The burden is on
the party asserting supervisory status to prove it. NLRB v. Kentucky River Community Care, 532
U.S. 706, 710-713 (2001).
Here, the General Counsel contends that the floor captains are supervisors because they 5
possess the authority to assign and/or responsibly direct the warehouse employees using
independent judgment.28 As indicated above, the record supports this contention. See Oakwood
Healthcare, Inc., 348 NLRB 686, 687, 693 (2006) (an individual has such authority if he/she has
the authority to assign employees to a place, overtime period, or significant overall duties, or
direct employees to perform tasks using judgment that involves the exercise of discretion that is 10
more than routine or clerical and not dictated or controlled by detailed instructions, and is held
responsible or accountable for performance of those tasks). See also Golden Crest Healthcare,
348 NLRB 727, 730 (2006); and Croft Metals, Inc., 348 NLRB 717 (2006). 29 Moreover, as

27 See 29 U.S.C. Sec. 152(11) (“The term ‘supervisor’ means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the foregoing the
exercise of such authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.”)
28 The record also contains some evidence that the floor captains have the authority to
effectively recommend discipline; however, the General Counsel’s posthearing brief does not
contend that the floor captains are supervisors on that basis.
29 The testimony of Phipps, Wallace, and Lerma regarding the floor captains’ authority to
assign and responsibly direct employees using independent judgment is conclusory and lacks
supporting detail in some respects, which would normally mean that it fails to satisfy the burden
of proof. See G4S Regulated Security Solutions, 362 NLRB No. 134, slip op. at 2 (2015), and
cases cited there. However, it is not fatal to the General Counsel’s case under the particular
circumstances here. On August 25, 2 weeks before the hearing, the General Counsel served a
subpoena duces tecum on the Company requesting various documents, including documents
relating to the duties of the floor captains (GC Exh. 2(e), attachment 1, pars. 1–7). The Company
subsequently filed a petition to revoke these and other requests, but the petition was denied in
relevant part by order dated September 4 (GC Exh. 2(a)). Nevertheless, the Company thereafter
failed to timely produce any documents responsive to the requests at the hearing, either on
September 8 as required by the subpoena, or on September 9. After a lengthy discussion of the
matter with the parties, I concluded that the Company had failed to make a good-faith effort to
timely comply with the subpoena requests as required, citing McAllister Towing, 341 NLRB 394
(2004), enfd. 156 Fed. Appx. 386 (2d Cir. 2005). Consistent with McAllister and other Board
decisions, at the General Counsel’s request I therefore issued a variety of evidentiary sanctions
against the Company, including permitting the General Counsel to introduce secondary evidence
and barring the Company from cross-examining the General Counsel’s witnesses or presenting
any contrary testimony or other evidence on the subjects or issues to which the subpoena requests
were addressed. See also M.D. Miller Trucking, 361 NLRB No. 141, slip op. at 1 n. 1 and JD. at
5 (2014); Perdue Farms, Inc., 323 NLRB 345, 348 (1997), affd. in relevant part 144 F.3d 830,
834 (D.C. Cir. 1998); Roofers Local 30 (Associated Builders and Contractors, Inc.), 227 NLRB
1444, 1449 (1977); and Bannon Mills, 146 NLRB 611, 614 n. 4, 633–634 (1964). I also ruled
that such sanctions would include appropriate adverse inferences (see, e.g., Chipotle Services,
JD(SF)–05–16
18
noted by the General Counsel, the record also contains so-called “secondary indicia” supporting
supervisory status; specifically, that the captains are paid more than the warehouse workers and
regularly attend management meetings. See generally Sheraton Universal Hotel, 350 NLRB
1114, 1118 (2007). Accordingly, the General Counsel has satisfied the burden of establishing
that White and Manning are supervisors.305
However, the record fails to establish that White unlawfully interrogated Phipps. The
relevant test is whether, under all the circumstances, the questioning would have reasonably
tended to restrain or coerce an employee in the exercise of union or other protected concerted
activity. See Rossmore House, 269 NLRB 1176 (1984), affd. sub. nom. Hotel & Restaurant 10
Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). In applying this test, the Board
typically considers a number of factors, including the identity of the questioner, the nature of the
relationship between the supervisor and the employee, whether there is a history of employer
hostility to union activity, the place and method of interrogation, the nature of the information
sought, and the truthfulness of the employee’s reply. See Intertape Polymer Corp., 360 NLRB 15

LLC, 363 NLRB No. 37, slip op. at 1 n. 1 (2015); and Metro-West Ambulance Service, 360
NLRB No. 124, slip op. at 1 and n. 13 (2014)), but reserved ruling on exactly what those
inferences would be until after reviewing all the evidence and the parties’ posthearing briefs. (Tr.
53–126.) Having now done so, I grant the General Counsel’s request (Br. 4 n. 5) and find, for
purposes of this case, that the Company’s contumacious failure to produce the subpoenaed
documents supports an adverse inference that they would have corroborated the testimony of
Phipps, Wallace, and Lerma and provided additional evidence to establish that the floor captains
have the authority to responsibly direct employees using independent judgment as required under
Section 2(11) of the Act as interpreted and applied by the Board in Oakwood Healthcare and
subsequent cases. See generally Essex Valley Visiting Nurses Assn., 352 NLRB 427, 441–444
(2008), reaffd. 356 NLRB No. 18 (2010), enfd. 455 Fed. Appx. 5 (D.C. Cir. 2012).
In its posthearing brief (p. 25) the Company argues that, not only should I decline to impose
any adverse inference against it for failing to produce the subpoenaed documents, but I should
impose an adverse inference against the General Counsel. The Company argues that such an
adverse inference is warranted because the General Counsel failed to call or question White or
Manning themselves regarding their supervisory authority. To paraphrase the D.C. Circuit, the
Company’s argument “is not only meritless, it reflects real chutzpah.” Fallbrook Hospital Corp.,
v. NLRB, 785 F.3d 729, 733 (D.C. Cir. 2015). There is no record basis to assume that White and
Manning would have testified favorably to the General Counsel. See generally Torbitt &
Castleman, Inc., 320 NLRB 907 n. 6 (1996), enfd. 123 F.3d 899, 907 (6th Cir. 1997); and
International Automated Machines, 285 NLRB 1122 (1987), enfd. mem. 861 F.2d 720 (6th Cir.
1988) (an adverse inference against a party for failing to call a witness is inappropriate unless it
may reasonably be assumed that the witness would have testified favorably to that party).
Moreover, without the subpoenaed documents, the General Counsel would not have been able to
fully cross-examine or impeach them regarding their testimony. Finally, the sole authority cited
by the Company for applying an adverse inference against the General Counsel—the judge’s
decision in Desert Pines Golf Club, 334 NLRB 265, 268 (2001) —has no precedential weight as
the Board expressly disavowed the judge’s discussion of the issue (see n. 1).
30 The General Counsel also alleges and asserts that the floor captains are agents of the
Company under 2(13) of the Act. However, the General Counsel’s posthearing brief fails to
specify the evidentiary basis for such a finding, and it is unnecessary to reach the issue given my
finding that they are supervisors.
JD(SF)–05–16
19
No. 114, slip op. at 1 (2014), enfd in relevant part 801 F.3d 224 (4th Cir. 2015); and Fresh &
Easy Neighborhood Market, Inc., 356 NLRB 546, 556 (2011), enfd. in relevant part 468 Fed.
Appx. 1, 3 (D.C. Cir. 2012), and cases cited there.
Here, there are some factors supporting the General Counsel’s contention that White’s 5
remarks and questions were coercive. White and Phipps had never had such conversations
previously,31 the union campaign at the warehouse was still covert, and there is no evidence that
Phipps’ role had been revealed to management at that point. Further, Phipps avoided directly
answering White’s questions, specifically mentioning the Company’s previous unfair labor
practices during the 1998 union campaign.32 10
However, White was a low level supervisor, the conversation arose casually, after a
chance encounter at the time clock, and nothing in the record indicates that White’s demeanor or
tone or was hostile or threatening in any way. Further, Phipps knew that word of the union
campaign had been spreading “like wildfire” through the warehouse, notwithstanding his 15
attempts to keep it covert, and White’s remarks and questions did not seek or invite any
additional or specific information such as the identity of the union supporters. Finally, over 16
years had passed since the 1998 Teamsters campaign, and the Company had not at that point
committed any further unfair labor practices in response to the current BCTGM campaign. On
balance, therefore, it is unlikely that White’s remarks and questions would have reasonably 20
tended to restrain or coerce an employee in exercising the right to engage in union activity. Cf.
Hancock, 337 NLRB 1223, 1224 (2002) (reaching same conclusion under similar circumstances).
Accordingly, the allegation is dismissed.
The record likewise fails to establish that White unlawfully created the impression of 25
surveillance. An employer’s general statements about hearing “rumors” of a union campaign do
not create an impression of surveillance absent evidence that the employer could only have
learned of the rumor through surveillance. See South Shore Hospital, 229 NLRB 363 (1977),
and cases cited there.33 There is no such evidence here. Accordingly, this allegation is dismissed
as well.30

31 I credit Phipps’ uncontroverted testimony in this regard (Tr. 499). Phipps also denied ever
speaking to Manning specifically about the union campaign (Tr. 613–615) and Manning
confirmed this (Tr. 970).
32 At the hearing, Phipps testified that he was also concerned about White’s questioning
because White reported to Shipping Supervisor Myers, who was known to be very antiunion
(Tr. 499).
33 Flexsteel Industries, 311 NLRB 257 (1993), cited by the General Counsel, is inapposite. In
that case, the Board distinguished South Shore Hospital and found a violation because the
employer’s personnel manager twice stated to an employee that he had heard rumors about that
employee’s union activity, and the statements were accompanied by unlawful interrogations and
implicit threats. As indicated above, White’s reference to “rumors” concerned the union
campaign generally rather than Phipps’ own union activities, and his accompanying questions did
not constitute unlawful interrogation.
JD(SF)–05–16
20
2. January 28 conversation (Myers)
The General Counsel also alleges that, on January 28, shortly after the town hall meeting,
Outbound/Shipping Supervisor Myers unlawfully interrogated Wallace about his union
sympathies (GC Exh. 1(g), par. 5(i).)
5
Wallace is a warehouse loader who had worked at the Phoenix facility for a little over 6
years, since May 2008. He had not been aware of the union campaign prior to the January 28
town hall meeting, but signed a union card later that evening at a local Denny’s restaurant.
Myers is an admitted supervisor and directly supervised Wallace.34
10
The subject conversation occurred about 30 minutes after the town hall meeting ended.
Wallace was working at the loading dock door, when Myers walked up to him and asked what he
thought about the union. Wallace replied that he had talked to his dad, a neighbor, and a Sysco
Driver and they said that union workers have better benefits, but he was going to do his own
research. Myers nodded his head in agreement and walked off.3515
Unlike White’s previous conversation with Phipps, the balance of relevant factors
supports the allegation that this conversation was coercive and unlawful. Myers was Wallace’s
immediate supervisor, he purposefully approached Wallace at his work station and questioned
him directly about his personal views of the union, and he did so shortly after a formal meeting 20
with all of the warehouse employees where a high-level corporate official expressed opposition
to the union and unlawfully threatened employees with reduced benefits if they supported it.
Further, Wallace, who was not an open union supporter, gave Myers a noncommittal response.
Cf. Intertape Polymer Corp., above (finding a violation under similar circumstances).
25
3. January 28 incident at Denny’s (Manning)
The General Counsel also alleges that, later that evening, Floor Captain Manning engaged
in surveillance of the employees’ union activities at the local Denny’s restaurant (GC Exh. 1(g),
par. 5(j)).
30
As discussed above, the union campaign was still covert at the end of January. Phipps
was meeting with small groups of employees at that time, but only organizing-committee
members and employees they were sure supported the Union were invited. One such meeting
was held at a local Denny’s restaurant about a quarter mile from the warehouse on the evening of
January 28. Phipps and two union representatives arrived at around 5:30 p.m., and about five to 35
six warehouse employees showed up between 6:30 and 7 p.m. They all sat a table in the very
back that was not visible from the lobby.

34 As with Engdahl, Wright, and Vaivao, the Company denied in its answer that Myers was a
supervisor, but stipulated to his supervisory status at the hearing.
35 I credit Wallace’s testimony about the conversation (Tr. 646–650). Myers admitted that he
stopped and talked to employees while making his daily rounds on the dock after the meeting.
Although he testified that he only asked employees if they had any questions about the meeting,
he could not recall his conversation with Wallace; indeed, he could not recall whether he even
spoke to Wallace. (Tr. 863–864, 867.)
JD(SF)–05–16
21
Phipps stayed until about 7:30 p.m. As he was going out the door, he ran into Manning,
who, as found above, is a company supervisor. Manning was standing on the handicapped ramp
outside the front of the restaurant talking to an employee who had just signed a card. Phipps was
surprised to see Manning there, as directions had been given not to invite captains to the
meetings.36 And there is no credible evidence that anyone had done so, or that Manning was at 5
Denny’s for any reason other than to gather information about the meeting.37
It is unlawful for a manager or supervisor to go to an offsite location such as a restaurant
without an invitation or any other legitimate justification to observe employees’ union activities
during nonworking time. See, e.g., Ivy Steel & Wire, Inc., 346 NLRB 404 (2006); North Hills 10
Office Services, 344 NLRB 1083, 1095 (2005); and Munsingwear, Inc., 149 NLRB 839, 846
(1964) and cases cited there. As indicated above, the record evidence indicates that that is
precisely what Manning did. 38 Accordingly, his conduct violated the Act as alleged.
4. April 27 conversation (Manning)15
The General Counsel also alleges that, a few months later, on April 27, Manning
unlawfully created the impression of surveillance by telling Phipps that the Company knew he
had recently announced the union campaign in the breakroom, and that he had better watch his
back because the Company was watching him.3920

36 The foregoing findings are based on the credible testimony of Phipps (Tr. 518–520, 597)
and Wallace (Tr. 651–652), who as mentioned above was one of the employees who attended and
signed a card at the meeting.
37 I discredit Manning’s testimony that he was “asked by a couple employees . . . would [he]
go to the meeting” and that all he knew was that it had “something to do with work” (Tr. 967–
968). First, Manning never identified who those employees were. Second, while Manning had
met with Phipps offsite to discuss work issues in the past, he admitted that unions were never
discussed at those meetings and that Phipps himself did not tell him about the January 28
organizing meeting (Tr. 973). Third, Lerma, who was on the organizing committee and also
attended the January 28 meeting, credibly testified that he likewise did not invite Manning (Tr.
834). Fourth, there is no evidence that Manning had ever expressed support for a union; indeed,
the record indicates he was strongly opposed to a union. See Manning’s testimony, Tr. 969
(“[the employee I spoke to outside Denny’s] asked me, ‘Are you in the union or out?” And I
said, ‘Hell, no.’”). Finally, as indicated above, word of the organizing campaign was spreading
“like wildfire” at that time. And Manning admitted that he himself had been hearing “a lot of
talk on the docks about meetings and this and that” (Tr. 972). In sum, based on the record as a
whole, I find that it is more likely that Manning overheard discussion on the docks that there
would be a union organizing meeting at Denny’s that evening, and that, in light of the
Company’s antiunion town hall meeting that morning, he went to Denny’s to see what he could
see.
38 Music Express East, Inc., 340 NLRB 1063, 1076 (2003), cited by the Company, is
therefore plainly distinguishable on its facts.
39 The complaint alleges that Manning’s statements violated Section 8(a)(1) of the Act
because the first statement constituted surveillance and the second statement constituted a threat
of unspecified reprisal (GC Exh. 1(g), par. 5(s)). However, at the end of the hearing, the General
Counsel clarified that Manning’s first statement to Phipps was being alleged as unlawful on the
theory that it created the impression of surveillance (Tr. 971). And the General Counsel’s
JD(SF)–05–16
22
As discussed above, Phipps publicly announced the union campaign in the breakroom on
April 26 and 27. On the latter date, both Warehouse Manager Vaivao and another manager were
present in the breakroom during at least part of the announcement. A while later, after Phipps
had returned to work on his forklift, Manning came by in a cart and asked Phipps if it was true, 5
what he announced in the breakroom. Phipps replied that he could not talk about it during work.
Manning said, “just watch yourself, because they [are] watching both of us, so watch your back.”
Manning then turned around and left.40
As indicated by the Company, Manning’s initial query reflecting awareness of Phipps’ 10
announcement could not by itself reasonably create an impression of surveillance given that
Phipps made the announcement openly in the company breakroom, managers were present at the
time, and there is no contention that they should not have been. See Sunshine Piping, Inc., 350
NLRB 1186 (2007), and cases cited there. However, as indicated by the General Counsel,
Manning’s follow-up statement warning Phipps to “watch yourself” and “watch your back” 15
because the Company was watching, clearly did create the impression of surveillance.
Accordingly, it was coercive and unlawful. See Woodcrest Health Care Center, 360 NLRB No.
58, slip op. at 1–2 (2014), enfd. in relevant part 784 F.3d 902, 917–918 (3d Cir. 2015).
5. April 29 incident (Remblance)
The General Counsel also alleges that, on April 29, a few days after Phipps announced the 20
union campaign in the breakroom, Safety Manager Remblance unlawfully surveilled and
interrogated Phipps and another employee while they were on break (GC Exh. 1(g), par. 5(u)).
The incident occurred at about 1 p.m., a normal breaktime for Phipps and other
employees. Phipps and another senior employee on the first shift were talking in one of the 25
aisles, which was not unusual as employees could take a break wherever they wanted.
Remblance, who was about 60–70 yards away walking towards his office, noticed them and

posthearing brief argues that both statements were unlawful on this theory, apparently
abandoning the theory that the second statement was a threat of reprisal. While such shifting
theories are certainly not to be encouraged, given that the complaint allegation here involves a
single, short conversation, which was fully litigated and would likely have been litigated just the
same regardless of the theory, I find that the Company has not been deprived of due process. See
Space Needle, LLC, 362 NLRB No. 11, slip op. at 4 (2015) (finding that supervisor’s statements
to an employee violated Section 8(a)(1) on the ground that they were coercive, regardless of
whether they constituted an unlawful interrogation as alleged in the complaint).
40 I credit Phipps’ testimony about the conversation (Tr. 545–546, 555, 619). Manning
testified that he could not remember whether he had such a conversation with Phipps, but denied
that he ever told Phipps to watch his back (Tr. 970). The Company argues that this testimony
reflects well on Manning’s credibility; specifically, that Manning’s “acknowledge[ment]” that he
could not remember the conversation shows that he was a “credible and forthright witness” (Br.
28). However, the Company offers no plausible explanation for Manning’s failure to remember
whether he had a conversation with Phipps about his union campaign announcement less than 5
months earlier, and no such explanation is readily apparent. Further, as noted above, Manning’s
testimony on other matters was inconsistent and clearly contrary to the record as a whole.
JD(SF)–05–16
23
came over.41 He asked each of them if they were on break. They both said yes. Remblance
asked what they were talking about. Although they had been talking about Phipps’ involvement
in the union campaign, they just told Remblance they were talking about work. Remblance then
tried to make small talk, but they made it clear they were not interested. So Remblance started to
walk away. However, before he left, he turned and asked Phipps how much time he had left on 5
his break. Phipps looked at his phone and said a couple more minutes. Remblance told him to be
sure to get back to work when his break was over. 42
Phipps acknowledged in his pretrial affidavit (R. Exh. 1, p. 42–43), that Remblance had
come up and joined conversations between him and other employees in the past. However, the 10
circumstances indicate that that was not Remblance sole or primary reason for coming over;
rather, he came over to find out if they were on break and what they were talking about. Further,
it is undisputed that, as safety manager, Remblance was not in Phipps’ direct supervisory chain
and had never monitored his break time in the past. And there is no apparent reason in the record
why Remblance would have done so in this instance other than Phipps’ recent announcement 15
about the union campaign in the breakroom. Indeed, as discussed below, the evidence indicates
that other company managers and supervisors likewise took a number of other, unlawful actions
to monitor and interfere with the union campaign. Accordingly, a preponderance of the evidence
supports the allegation that Remblance’s conduct constituted unlawful surveillance. Cf.
Hawthorn Co., 166 NLRB 251 (1967), enfd. in relevant part 404 F.2d 1205 (8th Cir. 1969) 20
(foreman engaged in unlawful surveillance by adopting a practice during the union campaign of
sitting at employee tables in the cafeteria instead of the foremen’s table during coffee breaks,
assertedly to ensure they did not go over their break time).43
The related interrogation allegation presents a somewhat closer question. Although 25
Remblance asked what they were talking about, he did not specifically refer to the union
campaign. Further, Phipps was an open union supporter at that point. However, considering the
timing—just 2 days after Phipps’ announcement, and a few hours after the antiunion
communication meeting where Operations VP Engdahl made several unlawful statements to
Phipps and other first-shift senior employees—and the unlawful context discussed above, it is 30
likely that Remblance’s question would have reasonably tended to chill employees in the exercise
of their union activity. Accordingly, a preponderance of the evidence supports this allegation as
well. Cf. Classic Sofa, Inc., 346 NLRB 219, 235 (2006) (given the employer’s various antiunion
statements, the company president unlawfully created an impression of surveillance and
interrogated an employee a week before the union election by noting that two other employees 35
had been talking a lot and asking if she knew what they were talking about).

41 Like several of the other named managers, the Company denied in its answer that
Remblance was a statutory supervisor, but stipulated to his supervisory status at the hearing.
42 I credit Phipps’ testimony about the incident (Tr. 551–553, 620). Although his testimony is
not corroborated (the other employee did not testify), it is also not controverted (Remblance, who
no longer works for the Company, likewise did not testify). Further, it is consistent with his
pretrial affidavit (R. Exh. 1, p. 42–43), and the Company does not cite any reason why it should
not be credited.
43 Airport 2000 Concessions, LLC, 346 NLRB 958 (2006), cited by the Company, is
distinguishable as the Board found that the supervisor there did not engage in any “out-of-the-
ordinary” type of conduct.
JD(SF)–05–16
24
6. May 1 incident (Garcia)
The General Counsel also alleges that a few days later, on May 1, Inbound/Receiving
Supervisor Garcia unlawfully engaged in surveillance and created the impression of surveillance
by searching Lerma’s forklift for union authorization cards and subsequently telling Lerma that
he knew that Lerma had passed out a card in the breakroom and that he had searched Lerma’s 5
forklift to find union cards (GC Exh. 1(g), par. 5(v)(1), (2)).44
Lerma is a second-shift forklift operator and member of the union organizing committee.
He signed a union card on January 2, and began gathering signatures from other employees in
February. Garcia is currently his direct supervisor. Garcia has worked at the warehouse for 27
years, and has known Lerma for about 6 years. He became the outbound supervisor around mid-10
2013 and the second-shift inbound supervisor in February 2015, and has seen Lerma basically
every day he worked since.45
The May 1 incident occurred during a lunch break while Lerma was in the receiving
office. He had parked his forklift just outside the breakroom, and could see it through the large 15
office window. The forklift had an ID number on it (C18) and was typically assigned to him
every day. He had also left his clipboard on top of the forklift, which he had purchased himself
and had various documents clipped to it, including his pay sheets, drop notes, and work-hour
calculations for the week. A copy of the day’s schedule, which was prepared by the first-shift
inbound supervisor and showed where all the employees were assigned, was also in a cubbyhole 20
on the forklift.
At some point, Lerma glanced out the window and noticed that Garcia was leaning over
the forklift with Lerma’s clipboard in his hands and was leafing through the documents. Lerma
immediately went out and confronted Garcia, asking him what he was looking for. Garcia said25
he was looking for the schedule and walked away. However, Lerma did not believe him because
the schedule was in plain view sticking out of the cubbyhole and was not on the clipboard.
Further, while Garcia had authority to adjust the schedule and move employees around, he could
access the schedule on his office computer and had never asked to see Lerma’s copy of the
schedule before. Accordingly, when Lerma later saw Garcia again in the deli aisle, he asked 30
Garcia “to be straight” with him and tell him the real reason he was going through his “stuff.”
Garcia admitted at that point that he was looking for union cards. He said he had gotten a call
from transportation that Lerma was putting up flyers and had handed a union card to the
transportation clerk in the breakroom.46

44 The complaint (par. 5(v)(3)) additionally alleges that Garcia unlawfully solicited employee
complaints and promised employees increased benefits on May 1. However, the General
Counsel’s posthearing brief does not address this allegation, and it appears to have been
abandoned. In any event, the General Counsel has failed to carry the burden of proof and
persuasion.
45 Tr. 763, 784, 956–958. The Company stipulated at the hearing that Garcia is a statutory
supervisor.
46 I credit Lerma’s testimony about the incident (Tr. 807–814, 836–838, 851– 856). See also
GC Exh. 28(a), (b) (pictures of where his forklift was parked). Although Garcia testified to the
contrary in virtually every detail, he was not a credible witness. For example, notwithstanding
that the forklift drivers are usually assigned the same forklift every day and that he had directly
JD(SF)–05–16
25
There is no contention or evidence that Lerma had violated a lawful company rule or
policy by distributing a union card in the breakroom. Nor is there any contention or evidence
that the Company had a non-discriminatory policy and practice of searching forklifts or
clipboards for nonwork related items. Accordingly, Garcia’s foregoing conduct was clearly
coercive and violated the Act as alleged. See, e.g., Intermedics, Inc., 262 NLRB 1407, 1415 5
(1982), enfd. 715 F.2d 1022 (5th Cir. 1983); and Clark Equipment, 278 NLRB 498, 503–504
(1986). Compare Bellagio, LLC, 362 NLRB No. 175 (2015) (no violation found where the
employer had legitimate cause, based on the employee’s violation of company policy regarding
protection of client credit card data, to review her work email account to determine whether she
also had committed other similar violations); and Stanley M. Feil, Inc., 250 NLRB 1154 (1980) 10
(no violation found where the employer had a pre-existing legitimate rule and practice of
searching purses and bags when employees exited the facility during lunch break).
7. May 5 meeting with Lerma (Engdahl and Vaivao)
The General Counsel also alleges that, several days later, on May 5, Operations VP 15
Engdahl and Warehouse Manager Vaivao called Lerma up to the office and made various
statements to him that unlawfully created the impression of surveillance of his union activities,
promulgated an overbroad and discriminatory rule prohibiting him and other union supporters
from heckling or insulting employees, and threatened him with unspecified reprisals for doing so
(GC Exh. 1(g), par. 5(w)).4720
The subject meeting, which Lerma secretly recorded, occurred at the beginning of his
shift. Upon arriving at the warehouse, a supervisor informed Lerma that Vaivao wanted to see
him upstairs in his office. When Lerma got there, Vaivao told him that Engdahl wanted to talk to
him, and walked him across the hall to Engdahl’s office.48 After completing a phone call, 25
Engdahl introduced himself to Lerma and explained why he had been called up. He said,

supervised Lerma on the warehouse floor for the previous 3 months, he denied that he had any
idea it was Lerma’s forklift and clipboard he was looking through (Tr. 947). He also denied that
he carries his own copy of the schedule, notwithstanding that he distributes the schedule to the
employees, regularly “tweaks” it by shuffling employees around two to three times every shift,
and his office computer is far away on the opposite side of the warehouse (Tr. 947–949). Indeed,
during cross-examination on another point, Garcia let slip that he had “just distributed the
schedule” prior to looking through Lerma’s clipboard (Tr. 963). Moreover, given the Company’s
hostility to the union campaign, other unlawful conduct discussed herein, and subsequent actions
against Lerma (see the next section below), it is not difficult to believe that Garcia would have
been looking for union cards on Lerma’s forklift or clipboard. Nor is it too difficult to believe,
given that Garcia had known Lerma for so many years and had apparently not been a supervisor
for the vast majority of his 27-year career, that he would have admitted privately to Lerma that
that was the real reason he was looking through Lerma’s clipboard when Lerma continued to
question him about it.
47 The complaint also separately alleges (par. 6) that the Company unlawfully disciplined
Lerma at the May 5 meeting. This allegation is addressed in section C.2 below.
48 See Tr. 742 (Engdahl’s warehouse office is located directly across from Vaivao’s office).
JD(SF)–05–16
26
I wanted to talk to you today because there’s been let’s just say some
rumblings coming off the floor. Okay. And I’m doing this more as a heads-up to
you, okay, as wanting you to kind of take note and stay out of trouble. Okay.
The words that have come off the floor are that there’s some hecklings
going on, some insulting going on, and some potential slowdown on certain folks 5
who are not sharing a similar point of view. Okay. So I . . . want you to be aware
of that. It has come to our attention, okay. And I want you to understand our
position would be that that won’t be tolerated. Okay. And you could get in some
serious trouble for that. We want to try to avoid that. Okay.
So I’m . . .speaking as generically as I can, but I’m sure you understand 10
what I’m trying to say and . . . you know, we . . .want to avoid problems that we
don’t need to have. That’s all I’m saying. Okay. And I’m trying to speak as
nicely as I can and, you know, at least get the message across, right.
Lerma replied that he was just doing his own research like Engdahl had told him to do in 15
the town hall meeting, because what the Company was saying and what other guys were saying
about unions conflicted, and a lot of people asked his opinion. Lerma complained that he felt like
he was being pulled aside by management and “put in hot water” for “spreading rumors”
whenever he tried to express his opinion, even if it was on break or outside the Company.
20
Engdahl said Lerma was entitled to express his opinion, and hoped he did not “scare the
shit out” out of Lerma by “bringing him up” to his office. He then offered to “help clarify,”
saying,
It’s okay to express your opinion, okay, but the part that wouldn’t be okay is if it 25
was done in such a way where somebody could perceive it as intimidation, or
something like that, right? It’s kind of how you do it, if that makes sense, right?
Maybe—just think about that when you are expressing your opinion as to how
you’re doing it and what not, because maybe—you know, I’m not saying this is
the case, but maybe if that feedback is coming around somehow they are being—30
you know, . . . feel threatened or intimidated. That’s all I’m saying. I don’t know.
Vaivao then spoke, explaining why he had previously “followed up” and “talked” with
Lerma about expressing his opinions. He said he had done so because employees had told him
that Lerma was the one who told them things about the Company’s new pay plan, and the 35
employees were concerned about it and brought it up to him. And employees were now telling
the Company again that Lerma was “the local voice out there . . . telling [his] opinion in front . . .
of the guys.” Vaivao said,
So that’s what we’re hearing . . . all right. We’re hearing that, hey, Lerma was 40
doing this. All right. . . . Like Mark [Engdahl] said, we just got to make sure that
we’re not doing those type of things up there. We’re not . . . heckling guys out
there. We’re not slowly . . . not bringing fork[lifts] down for guys, for certain
individuals. All right. . . . If that’s the situation, like Mark said, you would be—
you would find yourself in some deeper trouble. 45
Lerma asked Vaivao who his sources were. However, Vaivao declined to say. Engdahl
assured Lerma that he was “not getting in trouble right now”; that they were “just talking” to
JD(SF)–05–16
27
him. Lerma replied that, nevertheless, to “protect himself,” in the future he would just do his
work, “stay quiet, don’t say shit,” and go home. Engdahl said “okay” and reiterated that Lerma
was not “getting in trouble.” Engdahl said that he was “trying to avoid anybody getting in
trouble”; that he “could not afford to lose anybody” and did not “want to have to bring in new
people”; that Lerma did a good job and the Company had “a ton of investment” in him by 5
training him over the years; and that the Company would have been “doing [Lerma] a disservice
not to at least tell [him] what [they] were hearing so that [he was] aware of it.” Lerma said
“okay, that works,” and the meeting ended. (GC Exh. 13(a), (b); Tr. 320–323, 820.)49
The General Counsel contends that Engdahl’s foregoing statements created the 10
impression of surveillance because he failed to disclose how he acquired information about
Lerma’s union activities (GC Br. 40). However, both Engdahl and Vaivao indicated that the
Company learned about his activities from other employees who had complained about them.
Although they did not identify the employees by name, Board precedent did not require them to
do so. See the discussion and cases cited in section A.5 above regarding the February 24 union 15
education meeting. Accordingly, this allegation is dismissed.
As indicated above, the General Counsel also contends that Engdahl’s statements
effectively promulgated a rule prohibiting Lerma and other union supporters from heckling or
insulting other employees. The General Counsel asserts that this rule was unlawful under 20
Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004). In that case, the Board held that a
work rule is unlawful, even if it does not expressly restrict union activity, if (1) employees would
reasonably construe it to prohibit union activity, (2) the rule was promulgated in response to
union activity, or (3) it has been applied to restrict union activity. The General Counsel argues
that the no-heckling or insulting rule was unlawful under the first and second prongs of this test, 25
i.e. because it was promulgated in response to union activity, and/or because such terms as
“heckling” and “insulting” are ambiguous and employees would reasonably interpret them to
encompass protected union activities. (GC Br. 62 n. 43).
The General Counsel’s arguments are well supported. There is no real dispute that 30
Engdahl adopted or announced a rule prohibiting “heckling” or “insulting” coworkers at the May
5 meeting. As indicated above, Engdahl clearly stated that such conduct “won’t be tolerated.”
Further, he did not cite or refer Lerma to any existing rule prohibiting such conduct, and the
Company does not contend that there was any such rule.50
35
There is also no real dispute that Engdahl promulgated the rule in response to union
activity. Although Engdahl and Vaivao scrupulously avoided specifically mentioning the union

49 I discredit the testimony of Engdahl (Tr. 742–749) and Vaivao (Tr. 237–249) to the extent
it conflicts with the recording and transcript of the meeting. For example, I discredit Vaivao’s
testimony that Engdahl specifically told Lerma that employees had complained that he had
thrown pens at them when they declined to sign a union card.
50 As discussed in section D.11 below, the Company maintains a rule against “harassment.”
However, Engdahl did not mention this no-harassment rule at the May 5 meeting, the reported
complaints about union supporters were not treated as harassment complaints under that rule (Tr.
144–145, 749, 929–930), and the Company’s posthearing brief does not contend it was identical
to or fully consistent with Engdahl’s rule.
JD(SF)–05–16
28
campaign during the meeting, there is no dispute that they were referring to Lerma’s prounion
opinions and activities, and that everyone in the room understood this.
In these circumstances, the burden was on the Company to demonstrate that the new rule
was actually motivated by legitimate workplace concerns apart from the union campaign. Care 5
One at Madison Avenue, 361 NLRB No. 159, slip op. at 3 (2014). The Company failed to do so.
Although Engdahl and Vaivao offered hearsay testimony that employees complained to them
about Lerma and other union supporters throwing pens at them after they declined to sign a card,
their testimony was never corroborated.51 Lerma credibly testified that he did not engage in such
conduct (Tr. 815–816, 847), and none of the complaining employees were called to contradict 10
him. Nor was any documentation of the complaints presented. Indeed, Engdahl and Vaivao
admitted that none of the complaints were ever investigated or documented (Tr. 749, 929–930).
Accordingly, the rule was clearly unlawful under the second prong of the Lutheran Heritage test.
See Care One, above, at n. 6, and cases cited there.
15
As for the first prong of the Lutheran Heritage test, like employer statements generally,
both the content and the context of the rule must be considered. Here, as indicated above, the
rule prohibited “heckling” and “insulting” coworkers. On its face, such language is at least
arguably lawful, i.e. it is not so “imprecise that it could encompass any disagreement or conflict
among employees, including those related to discussions or interactions protected by Section 7 20
[of the Act]” (2 Sisters Food Group, Inc., 357 NLRB 1816 (2011)). See First Transit, Inc., 360
NLRB No. 72, slip op. at 3 n. 10 (2014) (finding lawful an employer rule that prohibited “abusive
language where the language used is uncivil, insulting, contemptuous, vicious, or malicious”).
However, Engdahl went further by “clarify[ing]” that such conduct included expressing 25
an opinion in such a way “where somebody could perceive it as intimidation” or “feel threatened
or intimidated.” It is well established that rules restricting union or other protected activity
based on the subjective reactions of others are unlawful. See Consolidated Diesel Co., 332
NLRB 1019, 1020 (2000), and cases cited there. As the court stated in enforcing the Board’s
decision in that case, “There would be nothing left of Section 7 rights if every time employees 30
exercised them in a way that was somehow offensive to someone, they were subject to coercive
proceedings with the potential for expulsion.” 263 F.3d 345, 354 (4th Cir. 2001).52
Further, Engdahl announced the rule at a time when employees were, in fact, reportedly
complaining about being approached by union supporters. As discussed above, Vaivao had 35
reported this to Lerma and other employees at the March 26 union prevention meeting. See sec.
II.A.6, above. Moreover, just days before the May 5 meeting, Lerma’s immediate supervisor,
Garcia, unlawfully searched his forklift for union cards simply because he had been seen handing
a card to an employee in the breakroom. In these circumstances, employees would reasonably
conclude that the rule was intended to restrict such protected activities. See Care One, above,40

51 As noted above, neither Engdahl nor Vaivao specifically mentioned any pen throwing to
Lerma at the meeting. Thus, I reject the Company’s argument (Br. 18) that Lerma’s failure to
specifically deny such conduct at the May 5 meeting itself supports Engdahl’s hearsay testimony
about the complaints.
52 Although I would reach the same conclusion regardless, Lerma’s response to Engdahl (that,
to “protect himself,” in the future he would just do his work, “stay quiet, don’t say shit,” and go
home) certainly appears to confirm this reasoning.
JD(SF)–05–16
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slip op. at 4; and Boulder City Hospital, Inc., 355 NLRB 1247 (2010). See also Auto Workers v.
NLRB, 520 F.3d 192, 197 (2d Cir. 2008).
Finally, as indicated above, Engdahl warned Lerma that he “could get in some serious
trouble” if he violated the rule. Vaivao similarly told Lerma that he “would find [him]self in 5
deeper trouble” if he violated the rule. And, in his subsequent concluding remarks, Engdahl
made clear that, by “trouble,” they meant Lerma could be terminated. Thus, the evidence
likewise supports the allegation that Engdahl and Vaivao unlawfully threatened Lerma with
reprisals if he violated the rule. See generally Waste Management of Palm Beach, 329 NLRB
198, 200 (1999); and Lancaster Fairfield Community Hospital, 311 NLRB 401, 403 (1993). 10
8. May 8 letter to employees (McClelland)
The General Counsel alleges that a few days later, on May 8, Company President/CEO
McClelland committed similar violations in a letter to all warehouse employees. The General
Counsel alleges that the letter unlawfully promulgated an overbroad and discriminatory rule that15
requested employees to report, and threatened to legally prosecute, anyone who violated it (GC
Exh. 1(g), par. 5(x)).
The letter stated in relevant part as follows:
20
To All Associates:
It has come to my attention that some associates have recently been subjected to
threatening, violent, or unlawfully coercive behavior by other associates. This is a
very serious matter and one that I take personally. 25
Let me be clear: such behavior is not consistent with the Shamrock Foods
Company culture and values that are central to us. Shamrock has been in business
since 1922, and has never tolerated associates behaving towards each other in a
manner which is violent, threatening, or unlawfully coercive. Shamrock Foods 30
Company has always celebrated and encouraged the diversity of its associates and
will continue to do so. Associates should not be physically afraid of coming to
work. We will not allow associates to behave in a manner which violates the law
through threats of violence, or unlawful bullying. Simply put, this type of behavior
is unacceptable and I will make every effort to stop it at our workplace. 35
To that end, if you have been the victim of such behavior, in any way, shape, or
form, however minor, please promptly report it. Shamrock will fairly and
thoroughly investigate all allegations. If the complaint has merit, Shamrock will
take appropriate action against anyone threatening associates and refer the matter 40
to law enforcement for prosecution to the fullest extent of the law if that is the
right course of action. Each associate is expected to perform their work in a
cooperative manner with management/supervision, fellow associates, customers,
and vendors. [GC Ex. 14.]
45
The General Counsel contends that McClelland’s foregoing letter promulgated a new rule
prohibiting unlawful coercive behavior or bullying. The General Counsel argues that, like
JD(SF)–05–16
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Engdahl’s rule, this new rule was unlawful under both the first and second prongs of the
Lutheran Heritage test because it was promulgated in response to union activity and because
employees would reasonably construe it to apply to protected union activity.
Again, the General Counsel’s arguments are well supported. The letter clearly stated that 5
unlawful coercive behavior and bullying “was “unacceptable” and would not be tolerated or
allowed. Further, like Engdahl, McClelland did not cite or refer employees to any existing rule
prohibiting such conduct, and the Company does not contend that there was any such rule.53
It is likewise clear that the letter was sent in response to union activity. Although 10
McClelland did not specifically mention the union campaign, as discussed above neither did
Engdahl and Vaivao, yet there is no dispute that they were referring to union activity at their May
5 meeting with Lerma. Further, McClelland sent the letter to all the warehouse employees just 3
days later after that meeting. And there is no record evidence of any conduct other than the
prounion activity Engdahl and Vaivo discussed with Lerma and other employees at that and other 15
meetings that might have prompted the letter.
Moreover, McClelland’s testimony regarding how he came to send the letter is entirely
unbelievable. McClelland testified that he had no idea what the reported coercive behavior or
bullying was related to. He testified that HR told him that employees had complained of feeling 20
threatened, but he did not recall who in HR told him, did not know any details about what
happened, did not know why they felt threatened, and did not think it mattered why they felt
threatened. However, he acknowledged that he does not regularly send such letters to employees,
and in fact could not specifically recall the last time he had done so. He also admitted that he
“chose” to send this one because he felt that it was “imperative” to do so. (Tr. 353–356.) It is 25
inherently unlikely in these circumstances that he would not have asked or been told, at least in
general terms, what the alleged threatening behavior was about, before sending the letter.54
As discussed above, therefore, it was incumbent on the Company to show that
McClelland’s new rule was actually motivated by legitimate workplace concerns apart from the 30
union campaign. As with Engdahl’s rule, the Company failed to do so. Accordingly, the rule was
clearly unlawful under the second prong of the Lutheran Heritage test.

53 Again, the Company does not contend that McClelland’s rule prohibiting unlawful coercion
or bullying was identical or consistent with the Company’s existing no-harassment rule.
54 Thus, I find that, in truth, McClelland did ask and/or was told. See NLRB v. Howell
Chevrolet Co., 204 F.2d 79, 86–87 (9th Cir. 1953), affd. 346 U.S. 482 (1953) (where a tribunal
discredits a witness, it may find, “not only that the witness’ testimony is not true, but that the
truth is the opposite of his story”); and O’Reilly Auto Parts v. NLRB, 779 F.3d 576, 585 (D.C.
Cir. 2015) (where a witness’ testimony is discredited, the “next logical step” is to find that “the
truth was the opposite of what he recounted under oath”). The General Counsel also cites the
Company’s June 8, 2015 position statement (GC Exh. 29, p. 15), which it submitted during the
Region’s investigation of the allegations, as support for finding that the letter was sent in
response to union activity. However, the General Counsel offered the Company’s position
statement into evidence solely in support of the allegations involving Wallace, and it was
therefore received solely for that purpose (Tr. 857). Accordingly, I have not relied on it here.
JD(SF)–05–16
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Regarding the first prong of the test, no case has been cited or found since Lutheran
Heritage involving a rule that prohibited “unlawful bullying.” Like “heckling” and “insulting,”
this language is at least arguably lawful on its face, particularly where, as here, it is used in the
context of discussing “threatening, violent, or unlawfully coercive behavior.” See generally First
Transit, above. However, the circumstances surrounding issuance of the rule must also be 5
considered. And, as discussed above, McClelland announced the rule just days after three of his
supervisors or managers had unlawfully discouraged a primary union supporter from continuing
to engage in lawful union solicitation by searching his equipment for union cards and warning
him that the way he expressed his prounion opinions would be scrutinized under a subjective
standard. In these circumstances, an employee would reasonably conclude that, like Engdahl’s 10
rule, McClelland’s no-unlawful bullying rule would be applied to restrict protected activities.
See Care One, and Boulder City, above.
Finally, given the foregoing, McClelland’s letter also violated the Act as alleged by
requesting employees to “promptly report” to the Company if they were “the victim of such 15
behavior, in any way, shape, or form, however minor,” and by threatening to “refer the matter to
law enforcement for prosecution to the fullest extent of the law” if the Company decided the
complaint had merit. See Winkle Bus Co., 347 NLRB 1203, 1024 (2006); Ryder Truck Rental,
341 NLRB 761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005); and Tawas Industries, 336 NLRB
318, 322 (2001).20
9. May and June breakroom incidents (Garzon)
The General Counsel also alleges that Sanitation Supervisor Garzon committed a number
of unfair labor practices in May and June. Garzon had been the sanitation supervisor at the
warehouse for about 2 years, and supervised around 20 employees.55 The General Counsel 25
alleges that she unlawfully took union flyers away from and interrogated two of those employees
in the breakroom, and also unlawfully removed union literature from the breakroom information
counter (GC Exh. 1(g), pars. (y), (aa)).56
Phipps began handing out union flyers at the warehouse near the end of May. 30
On May 25, he was in the upstairs breakroom doing so when he noticed that Garzon was standing
at a table where he had placed flyers in front of two of the sanitation employees. As he watched,
Garzon reached down and took both of the flyers off the table. Phipps immediately walked over
and confronted her, saying she could not do that; it was a violation of their rights unless they
gave her permission to take the flyers. Garzon did not respond, but looked at the employees and 35

55 As with all of the other managers and supervisors identified in the original complaint, the
Company denied in its answer that Garzon was a supervisor, but stipulated to her supervisory
status at the hearing.
56 The complaint alleges that Garzon also unlawfully removed union flyers from the
breakroom on July 8. However, there is no specific record evidence of this and the General
Counsel’s posthearing brief appears to have abandoned the allegation. The complaint additionally
alleges that the Company maintains an overbroad no-solicitation/distribution rule generally. This
allegation is addressed in section D.12 below.
JD(SF)–05–16
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said, “Well, you guys don’t want these, do you?” Both of the employees shook their heads no,
and she walked off with them.57
Phipps also left union flyers on an “information counter” that the Company maintains in
the breakroom. The counter is used by the Company for displaying or distributing health and 5
fitness information. Employees also occasionally place business cards and notices advertising
items for sale on the counter, but Garzon immediately removes them.58 On at least three
occasions, Garzon likewise removed the union flyers that Phipps had placed on the counter
(Tr. 878). On one of those occasions in June, Phipps actually videotaped her doing so with his
cell phone camera. The video shows Garzon entering the breakroom, walking directly to the 10
counter, picking up the union flyers, and immediately walking out with them (GC Exh. 24).
It is well established that an employer may not prohibit distribution of union literature by
employees during nonwork time in nonwork areas absent a showing of special circumstances that
make prohibiting the distribution of literature necessary to maintain production or discipline. See 15
Our Way, Inc., 268 NLRB 394 (1983); and Stoddard-Quirk Mfg., 138 NLRB 615 (1962). The
Company made no such showing here; indeed, it does not even contend that there are any special
circumstances justifying a rule against distributing union flyers to employees in the breakroom.
Moreover, as indicated by the General Counsel, it is unlawful under extant law for an employer
to confiscate union literature even if it could lawfully prohibit distribution of it. See Manorcare 20
Health Services-Easton, 356 NLRB at 206; and Hanson Aggregates Central, Inc., 337 NLRB
870, 875–876 (2002). Thus, for either or both of these reasons, Garzon clearly violated the Act
by taking the flyers from the two employees in the breakroom.

57 I credit Phipps’ testimony about this incident (Tr. 554–558, 625–626, 630). It was
corroborated in substantial part by Garzon herself, who admitted that she picked up both of the
flyers; that Phipps approached and said she was not supposed to do that; that she asked the
employees if they wanted them back and they said no; and that she then walked off and threw the
flyers away (Tr. 872–877, 883–884). Although Garzon testified that she initially took one of the
flyers only because it was in English and the employee asked her to translate it in Spanish for her,
I discredit that testimony. According to Garzon, she already had her own copy of the flyer (Tr.
873). Thus, there was no need to take the employee’s copy to translate it. Further, as indicated
above, Garzon also took the other employee’s flyer. Finally, Garzon admitted that she refused to
translate the flyer for the employee because it was a union flyer (Tr. 874).
58 Tr. 558, 634–636, 881–883. Phipps testified that other “things” are also frequently put on
the counter, such as drinks, chips, water bottles, milk crates, and even hula hoops (Tr. 634–635).
However, he did not say who put them there or why. Further, although he said he had a picture
of the counter with one or more of these items on it, no such picture was offered into evidence.
Nor did any other witness corroborate his testimony. Accordingly, I find that the General
Counsel failed to establish that employees regularly placed items on the counter that were not
immediately removed by Garzon or the sanitation employees.
Phipps also testified that he had never noticed Garzon pick things up in the breakroom before
(Tr. 636). However, it seems unlikely that Garzon, who had also been a cleaner for 10 years
before she became the sanitation supervisor, would not have done so. In any event, the General
Counsel’s posthearing brief does not cite or rely on Phipps’ testimony in this respect as support
for the allegations.
JD(SF)–05–16
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Considering all the circumstances, particularly the fact that she was their direct
supervisor, Garzon also clearly violated the Act as alleged by asking the two employees if they
wanted the union flyers back. See GC Murphy Co., 213 NLRB 175, 176–177 (1974) (store
managers unlawfully interrogated employees by asking what they planned to do with the
literature a union agent had given them and to turn it over to the company); and St. Francis 5
Medical Center, 340 NLRB 1370, 1382 (2003) (hospital security guard unlawfully interrogated
employees by asking them if they were going to read the union flyer they had received or going
to keep it, and to give it to him).
However, the evidence fails to establish that Garzon likewise violated the Act by 10
removing the flyers from the company information counter. It is well established that an
employer may lawfully reserve breakroom bulletin boards for company information only
(Walmart Stores, Inc., 340 NLRB 703, 709–710 (2003)), and no case has been cited or found
indicating that an employer may not likewise reserve a breakroom counter. Although an
employer may not disparately enforce such a policy by permitting employees to display some15
information but not union information (ibid.), contrary to the General Counsel’s contention, there
is no direct or substantial evidence that the Company did so.59 As indicated above, the counter
was maintained by the Company solely to display information on health and fitness, and other
information placed there by employees was routinely removed.60 Accordingly, this allegation is
dismissed.20

59 In arguing to the contrary, the General Counsel’s posthearing brief cites: (1) Phipps’
videotape of Garzon removing the union flyers; and (2) Lerma’s testimony that the employees
sell Girl Scout cookies and fundraise for their children’s sports teams on the work floor (Tr. 780).
I agree that Phipps’ videotape is strong evidence that Garzon went into the breakroom solely to
remove the union flyers. Based on the videotape and the record as a whole, I therefore discredit
Garzon’s testimony (Tr. 884–888) that she did not go there on that occasion to look for or
remove the flyers, and that she was just checking the entire breakroom as usual to make sure it
was clean. I also agree that Lerma’s testimony indicates that the Company might not have
strictly enforced its no-solicitation/distribution rule in certain respects on the work floor (Lerma
did not say whether any managers or supervisors were present or aware of the employee
solicitation on the work floor). However, neither is sufficient to satisfy the General Counsel’s
burden to establish that removing the union flyers from the company information counter was
contrary to past practice or otherwise discriminatory. See Wal-Mart Stores, above. Compare
Intertape Polymer Corp., 360 NLRB No. 114 (2014) (finding violation where evidence
established that literature, such as newspapers, magazines, etc., had previously remained
untouched in the breakroom until at least the end of the workday, but during the union campaign
supervisors monitored the breakroom much more closely and began removing all literature,
including union literature, shortly after employees finished their breaks), enfd. on point 801 F.3d
224, 232–233 (4th Cir. 2015).
60 There is no reference to use of the breakroom counter in the company no-solicitation/
distribution rule, or any other documentary evidence in the record of the Company’s restriction
on its use. However, it is not necessary that such a restriction be in writing. See Walmart Stores,
above. And the General Counsel’s posthearing brief does not contend otherwise.
JD(SF)–05–16
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10. May 29 wage increase
The General Counsel also alleges that, about May 29, the Company unlawfully gave a
wage increase to some of the warehouse employees to dissuade them from supporting or voting
for the Union (GC Exh. 1(g), par. 5(z)).
The Company granted or announced wage increases for four groups or classifications of 5
warehouse workers in May: will call ($2/hour, retroactive to beginning of pay period), returns
($2/hour), sanitation ($1/hour), and throwers ($1/hour, likewise retroactive). Such wage
increases for warehouse employees were rare; increases normally ranged between 3–5 percent.
And the Company had never granted a retroactive wage increase in the previous 20 years.61
10
As previously discussed in section A.7 above, an employer violates Section 8(a)(1) of the
Act by promising or granting a benefit during a union campaign in order to dissuade its
employees from supporting the union. The evidence strongly supports an inference that this was
the Company’s motive for granting or announcing the May wage increases. As discussed above,
HR Director Wright and Warehouse Manager Vaivao had unlawfully solicited employee 15
complaints regarding their wages at the roundtable and communication meetings on January 28
and February 5. Moreover, at the recent communication meeting on April 29, Operations VP
Engdahl had specifically reminded employees, after making various unlawful promises and
threats, that it was “the company” that pays wages, “not the union.” See sec. A.2, 3, and 7
above. Granting a substantial number of the warehouse employees extraordinary and 20
unprecedented retroactive wage increases just a few weeks later not only proved, but emphasized
the point. It also, of course, suggested “a fist inside the velvet glove,” and thereby fit well with
the Company’s other unlawful antiunion conduct.62

61 The foregoing findings are based on the credible and corroborative testimony of Phipps
(Tr. 559–561 and Lerma (Tr. 781, 843). Both are in a different classification or position (forklift
operator), and their testimony about most or all of the wage increases was hearsay, based only on
what they had been told by the employees who received them. Nevertheless, I have given this
secondary evidence substantial weight in light of the Company’s failure to make a good-faith
effort to timely comply with the General Counsel’s subpoena request for the relevant payroll
records (GC Exh. 2(e), attachment 1, par. 52). See fn. 29 above, and cases cited there. See also
Tr. 911–927 (further discussing the evidentiary sanctions with respect to the wage-increase
allegation), and Company counsel’s on-the-record statements, Tr. 94 [day 2] (“[A] lot of these we
could . . . probably just stipulate to . . . I don’t think there’s a question that there was a pay raise
granted on a particular date”); Tr. 563–564 [day 5] (“without . . . having spoken to the client yet,
I believe the General Counsel is correct. . . . I don’t believe there is a dispute over whether there
was an increase”); Tr. 564–565 [day 5] (“I’m not aware of the dispute on [the date of the
increase] . . . and to the best of my knowledge, I think those amounts are correct, but I would
have to double-check”); and Tr. 916 [day 7] (“there are documents that say . . . this is the wage
increase and stuff”).
62 See NLRB v. Exchange Parts Co., 375 U.S. 405, 460 (1964) (“The danger in well-timed
increases in benefits is the suggestion of a fist inside the velvet glove. Employees are not likely
to miss the inference that the source of benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is not obliged.”). The General Counsel’s
posthearing brief does not request an adverse inference of an unlawful motive based on the
Company’s failure to produce documents responsive to paragraphs 52–54 of the subpoena duces
JD(SF)–05–16
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Nevertheless, the Company argues that the allegation must fail for two reasons. First, it
argues that the wage increase cannot be found unlawful because no election petition was pending,
and the Company therefore had no knowledge at the time which employees the Union had
targeted in its organizing effort. The argument is without merit. See NLRB v. Curwood, Inc., 397
F.3d 548, 553–557 (7th Cir. 2005) (affirming Board’s finding that the employer’s pre-petition 5
announcement of benefits was unlawful where the employer was admittedly aware of the union
campaign at the time), and cases cited there.63 As in Curwood, there is no dispute here that the
Company knew about the union organizing campaign among the warehouse workers at the time
it granted the wage increases. Nor is there any evidence or contention that the Company had
reason to believe that the campaign excluded warehouse workers in the will call, returns, 10
sanitation, and thrower positions.
Second, the Company argues that no violation can be found because the Union’s
campaign was not active at the time that the wage increases were granted. This argument is
likewise without merit. There is no evidence that the union campaign was not still active during
and after May 2015. On the contrary, as discussed earlier, Phipps began openly distributing 15
union flyers at the warehouse at the end of May. And both he and Lerma continued to do so in
June. (Tr. 554, 565, 630, 787–788, 846.) Thus, there was no reasonable basis for the Company to
conclude that the union campaign was dormant at the time of the wage increases. Cf. Sigo Corp.,
146 NLRB 1484, 1486 (1964) (reaching contrary conclusion where the union had withdrawn its
petition without explanation and there was no evidence of any organizational activity thereafter).20
In arguing otherwise, the Company relies solely on a pretrial affidavit that Phipps gave to
the NLRB Regional Office on May 21 during its investigation of the Union’s unfair labor
practice charges. The Company asserts that Phipps’ affidavit admitted that the union campaign
was essentially dormant at that time. However, the affidavit contained no such admission.
Indeed, it stated that a union meeting had been held just 2 days earlier, on May 19. Although the 25
affidavit stated that fewer employees attended the meeting, that only four additional cards had
been signed in the previous 30 days, and that the campaign was “pretty much stalled,” it
explained that this was “due to the [Company’s] constant efforts to interrogate employees about
if we are for or against the union and the fact that supervisors are constantly surveilling us.” (R.
Exh. 1, pp. 52–53.) 30
In any event, there is no record evidence or contention that the Company was provided a
copy of Phipps’ affidavit before it granted the wage increases. The NLRB’s policy and practice
is not to provide a respondent with such a pretrial affidavit unless and until the witness has
testified for the General Counsel or the charging party at the hearing. See Sec. 102.118(b)(c) and
(d) of the Board’s Rules; and H.B. Zachry Co., 310 NLRB 1037 (1993). 35
Accordingly, the wage increases violated the Act as alleged.

tecum. In any event, given the substantial record evidence of the Company’s unlawful motive
discussed above, it is unnecessary to draw or rely on such an adverse inference.
63 See also Hampton Inn, 348 NLRB at 17 (the rule regarding a promise or grant of benefits
during an organizing campaign applies even if no representation petition has yet been filed).
JD(SF)–05–16
36
C. Alleged Unlawful Discharge and Discipline
1. Thomas Wallace
The General Counsel alleges that the Company violated Section 8(a)(1) and (3) of the Act
by discharging Wallace on April 6 because he complained at a March 31 company meeting about 5
the Company’s health benefits and/or because he supported the Union, and to discourage other
employees from engaging in such activities. The General Counsel also alleges that the Company
violated Section 8(a)(1) of the Act by presenting a separation agreement to Wallace at the time of
his discharge that included certain overbroad provisions.64 (GC Exh. 1(g), par. 5(a), (p) – (r), and
GC Exh. 1(m), par. 6(b); Tr. 699–700.)10
a. The discharge
As discussed in section B.2 above, Wallace is a warehouse loader who had worked at the
Phoenix facility for over 6 years and signed a union card at the Denny’s meeting on January 28. 15
There is no evidence that Wallace passed out union flyers or otherwise openly campaigned for
the Union at the facility.65 However, as indicated in section A.1 above, he was the first employee
to speak up when Engdahl opened the floor to questions at the January 28 town hall meeting,
asking why Shamrock’s competitors were unionized (GC Exh. 8(a), at 12–13.)
20
Wallace also asked a few questions at a mandatory “state of the company” meeting with
all of the warehouse workers and managers on March 31. The meeting was conducted by Robert
Beake, the Company’s senior vice-president for HR. Beake had served in that position for 14
years, and reported directly to both President/CEO Kent McClelland and his father, Norman
McClelland, the chairman of the board. 25
Like the January 28 town hall meeting, the meeting was secretly recorded by Phipps.
Beake began by saying that neither of the McClellands could be present at the meeting, but that
he would play a recorded message from each, one from Kent “in the beginning” and one from
Norman “at the end.” He then played the message from Kent. It summarized the Company’s 30
“tremendous growth” and “wonderful results” during the previous year, thanked the employees
for their contribution, and listed the topics for the meeting (the company’s stock and retirement
programs, changes in HR, and other “things that affect [employees] directly and personally”).
Beake then discussed these points in more detail. He noted that, although the Company 35
was still privately held and family owned, it had around $3 billion in sales the previous year, and
an annualized growth of over 8 percent over the previous 30 years, which was “incredibly
impressive” for the industry. He also said that the Company expected “some incredible
numbers” in 2015, including $300 million in sales from just one of the Company’s newer food

64 Although the complaint alleges that the provisions were also discriminatory, the General
Counsel’s posthearing brief argues only that they were overbroad, and thus appears to have
abandoned the theory. In any event, the General Counsel failed to carry the burden of proof and
persuasion.
65 Phipps testified that Wallace brought the Union three signed cards and was outspoken
about the benefits of the Union (Tr. 606). However, this testimony was not corroborated and the
General Counsel’s posthearing brief does not mention or rely on it.
JD(SF)–05–16
37
service operations in California. He said that all of the profits are put back into the Company to
continue its growth. However, he noted that a substantial number of employees were
stockholders and had benefited from the large increase in the Company’s stock price. He also
discussed various employee benefits offered by the Company. He noted, for example, that the
Company continued to contribute half of the employee deductible under the Company’s wellness 5
and healthcare plans, and also continued to offer a 401(k) match and profit sharing.
Beake then introduced Vince Daniels, the Company’s new vice president for HR. Daniels
had been hired 6 months earlier, in August 2014, and reported to Beake. Daniels briefly
summarized various changes in HR and employee services, including a new internet based portal 10
for employees to access 24/7.
Beake then “close[d]” by playing a recorded message from Norman McClelland. The
message reiterated how much the Company was progressing and gaining in market share. It also
again thanked the employees for their part, saying that the Company “value[d]” them and wanted 15
to treat them “like family.”
When the message was finished, Beake repeated that it “close[d] out what [the Company]
wanted to convey” to the employees at the meeting. However, he added that there was “a little
bit of time . . . to take some questions if [they had] any.” An employee then asked a few 20
questions about the healthcare plan; specifically, about getting a medical discount card and
whether the deductible had gone up.
After these two initial questions had been answered, Beake asked if there were any other
questions. Wallace at that point raised his hand and said, “Yeah. Is there any way we can get our 25
old insurance back?” This question was immediately greeted with a burst of laughter and
applause among the employees. When it subsided, Wallace continued, “You know, 300 million
dollars. I mean it’s through the roof. Is that even being considered or anything?”
Beake responded that the $300 million was sales revenue and not profits, and that the 30
Company’s profit margin was only pennies on the dollar. He acknowledged that the healthcare
plan had some drawbacks as well as benefits, but said the Company tried to do the best it could
for the employees by changing to the high deductible plan and covering half of the deductible for
them.
35
Wallace then followed up with a second question: “Is there any way you could contribute
the full 3,000 or the full contribution? Because some companies do that. I was just wondering.”
Beake replied that “most companies don’t contribute anything to the deductible.” The Company
does, he continued, and “obviously it pleases a lot,” but “[i]t doesn’t please all.” He noted that
the Company spent over $23 million on healthcare in 2014, and said it would continue to look at 40
the plan to try to manage its costs.
Another employee then asked a question about the next open enrollment for the long-term
and wellness programs. Wallace, however, did not remain to hear the answer. He was near the
back of the room, next to the rear door (one of three exits), and decided to leave at that point and 45
return to his work station. When he got there, he saw his supervisor, Myers, who had left even
earlier, about halfway through the meeting. Wallace told Myers he left because the packed room
was so hot and stuffy, and Myers said he had left for the same reason. Wallace also told Myers
JD(SF)–05–16
38
about the applause in response to his question to Beake, and said he hoped he would not get in
trouble for it. Myers assured him he would not.
Back at the meeting, Beake continued to take questions for a few more minutes. After the
last one was answered, he announced, “We’re out of time,” and thanked everyone. The 5
employees then returned to their work stations.66
Wallace continued working the remainder of the day and again on April 1, 3, and 5
without any problem. On April 6, however, after he had finished lunch, the shift manager told
him to “grab [his] stuff” and escorted him to HR. When he arrived, Warehouse Manager Vaivao10
and Allen, the new HR representative, were there.67 Wallace asked Vaivao what was going on.
Vaivao replied,
We have a situation here. Senior staff was offended that you asked about the
healthcare . . . [S]enior staff thought you were rude and disrespectful and you're 15
being terminated.
Wallace asked how he could be fired for asking questions when the employees had been invited
to do so. Vaivao replied,
20
Senior staff came together and . . . [the] decision came from Norm and Kent
[McClelland] . . . that you’re not going to be happy with the benefits that we give
you so you can find a company with better benefits.68

66 The foregoing summary is based primarily on the recording and transcript of the meeting
(GC Exh. 11(a), (b)), and the credible testimony of Wallace (Tr. 657–659) and Phipps (Tr. 536–
537). Wallace testified that he also saw two other employees leave early. However, this
testimony was not corroborated and the General Counsel’s posthearing brief does not mention or
rely on it. As for Myers, he admitted that he left early (Tr. 864–865). Although he testified that
he did so because “about that time of year . . . I just get a cold and I started coughing really bad,”
he did not deny telling Wallace that he had left early for the same reason he did.
67 Allen subsequently resigned in June 2015 (Tr. 370–371), and did not testify.
68 I credit Wallace’s testimony about the meeting with Vaivao and Allen (Tr. 659–662, 665–
666, 678, 696–697), which was detailed and consistent both with what he subsequently told
Phipps (Tr. 541–543, 609) and with the sworn statement he gave to the NLRB 2 weeks after the
meeting (R. Exh. 5, pp. 9–10). Although Kent McClelland denied any involvement in the
discharge decision (Tr. 351–352), and Vaivao denied saying or suggesting otherwise on April 6
(Tr. 150–154, 906), I discredit that testimony. First, there is no reason to believe Beake would
not have spoken to one or both of the McClellands about the meeting. As indicated above, Beake
reported directly to them on a regular basis, and there was plenty of time to report to them about
the state-of-the-company meeting between March 31 and April 6. Indeed, Beake did not deny
reporting to the McClellands about the meeting, and the Company has offered no other
explanation for the week-long delay before discharging Wallace. Moreover, as discussed infra,
HR Vice President Daniels’ testimony that he alone made the discharge decision without talking
to anyone is wholly unbelievable. Second, as noted above (fns. 12, 13, 16, 20, 49), Vaivao was a
particularly unreliable witness. And his testimony about the March 31 meeting that led to
Wallace’s termination was no better. For example, he testified that Wallace was the only one
who left the meeting early (Tr. 193). However, as indicated above, there is no dispute that
JD(SF)–05–16
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Allen then presented Wallace with a “Separation Agreement and Release and Waiver.”
The agreement stated that he was being terminated effective that day, and set forth the total
amount of “separation benefits” he would receive, in addition to any unpaid wages, “provided”
he signed the agreement. It also contained various other terms and conditions, including, as 5
discussed below, several confidentiality provisions. (GC Exh. 26.) Wallace signed that he
received the agreement, but refused to sign that he accepted it.
The parties agree that the proper test for evaluating whether Wallace’s discharge was
unlawful is set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), 10
cert. denied 455 U.S. 989 (1982). Under that test, the General Counsel must prove by a
preponderance of the evidence that the employee's union or other protected activity was a
substantial or motivating factor in the adverse action. The General Counsel can make a sufficient
initial showing in this regard by demonstrating that (1) the employee engaged in the union or
protected activity and the employer knew it, or the employer believed or suspected that the 15
employee engaged in or was likely to engage in such activity, and (2) the employer had animus
against such activity. If the General Counsel makes the required initial showing, the burden
shifts to the employer to establish by a preponderance of the evidence that it would have taken
the same action even in the absence of the employee's actual or suspected union or protected
activity. See Corliss Resources, 362 NLRB No. 21, slip op. at 13 (2015); Consolidated Bus 20
Transit, 350 NLRB 1064, 1065 (2007); Signature Flight Support, 333 NLRB 1250 (2001), affd.
31 Fed. Appx. 931 (11th Cir. 2002); and Multi-Ad Services, 331 NLRB 1226, 1240 (2000), enfd.
255 F.3d 363 (7th Cir. 2001), and cases cited there.
Here, as indicated above, the General Counsel alleges that the Company unlawfully 25
discharged Wallace (1) for complaining about the healthcare plan, and/or (2) because it knew or
suspected that he supported the union campaign. With respect to the first, the General Counsel
has clearly satisfied the initial Wright Line burden. It is well established that an employee
engages in protected concerted activity by complaining at a group meeting about employment
terms common to all employees. Worldmark by Wyndam, 356 NLRB 765 (2011). And the 30
applause from Wallace’s coworkers in response to his initial question to Beake certainly supports
applying that general principle here. Further, Vaivao specifically stated at the termination
meeting that Wallace was being fired for complaining to Beake about the Company’s healthcare
plan at the meeting.69

Myers, Wallace’s direct supervisor, left the meeting about halfway through. Vaivao also testified
that Wallace was “agitated” when he asked his questions, and that he “got up and stormed out”
after Beake answered them (Ibid.). However, neither is reflected in the recording of the meeting:
Wallace asked his questions in a normal/conversational tone, and there is no sound of any
disturbance after Beake answered them. Further, as indicated above, Wallace was right next to
the rear exit, and Beake himself testified that he did not even notice Wallace leaving (Tr. 444,
446). Finally, although Daniels testified that Wallace made a dismissive wave forward with his
hand as he walked out of the meeting (Tr. 714), there was no mention of this in the Company’s
position statement during the NLRB’s investigation (GC Exh. 29, p. 22, par. 5), no other witness
testified at the hearing that they saw Wallace make such a gesture (not even Vaivao), and
Wallace himself credibly denied doing so (Tr. 657).
69 As noted above, I have credited Wallace’s testimony about what Vaivao said at the
termination meeting. Although Phipps acknowledged that he had not been disciplined when he
JD(SF)–05–16
40
The General Counsel has also satisfied the initial Wright Line burden with respect to the
second. As indicated above, Wallace was a union supporter. And it is certainly a reasonable
inference that the Company knew or suspected this given the nature of Wallace’s questions at the
January 28 and March 31 meetings and Vaivao’s statements at the March 26 union prevention
meeting that the Company knew “exactly” which “disgruntled” employees supported the Union 5
and attended union meetings.70 Further, the Company’s strong animus toward union supporters is
well established by the Company’s numerous unfair labor practices and the record as a whole.
See Metro-West Ambulance Service, 360 NLRB No. 124, slip op. at 1 (2014); and Lucky Cab
Co., 360 NLRB No. 43, slip op. at 6 (2014), and cases cited there (employer’s contemporaneous
8(a)(1) violations demonstrate its union animus).7110
Moreover, as discussed below, there is an abundance of other, circumstantial evidence
that the discharge was unlawfully motivated. See, e.g., Bally’s Park Place, Inc. v. NLRB, 646
F.3d 929, 935–939 (D.C. Cir. 2011); and Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466,
470 (9th Cir. 1966) (unlawful motive for discharge may be established by circumstantial 15
evidence).
Shifting reasons for discharge. In the June 8 position statement it filed during the NLRB
investigation of the allegations, the Company stated that Wallace was discharged for
“belligerently interrupting a senior Company official multiple times” and because he “abruptly 20
left the meeting without permission” (GC Exh. 29, p. 22, par. 5). At the hearing, however, HR
Vice President Daniels, who claimed that he alone made the decision, testified that Wallace was
terminated because he made a “dismissive waving gesture forward” with his hand after Beake
answered his questions and because he walked out of the meeting (714–715). And Daniels later
testified that Wallace was terminated solely for leaving the meeting (Tr. 718). See also the 25
Company’s posthearing brief at 43 (“Wallace was discharged because he stormed out of [the]
March 31 mandatory meeting”).72

complained in an arguably rude and disrespectful manner at previous company meetings about
how the Company treated employees, those meetings were conducted before the union campaign
and/or by lower level managers or supervisors. See Tr. 543–544, 601, 609–611, 630–631; and
R. Exh. 1, p. 36.
70 See sec. A.6, above. Engdahl admitted that Wallace’s question about Shamrock’s
unionized competitors at the January 28 town hall meeting “stuck” with him, as it was “pretty
insightful” and had never been asked at any of the numerous similar meetings he had conducted
in the past (Tr. 894, 897–898).
71 See also EF International Language School, Inc., 363 NLRB No. 20, slip op. at 1 n. 2
(2015) (General Counsel is not required to show animus toward the alleged discriminatee’s union
or protected activity in particular in order to satisfy the initial burden under Wright Line).
72 The Company did not produce a termination report or any other documents regarding the
discharge, as requested in paragraphs 28–33 of the General Counsel’s subpoena duces tecum (Tr.
542). When asked for an explanation on the second day of hearing for failing to produce a
termination report, company counsel stated, “Your Honor, we did look into that. There is no—
currently, they don’t give written termination of assistant people. We did—that one we did look
into, and it just doesn’t exist.” Counsel also stated that there were no emails or other
communications about the discharge because Daniels had “compartmentalized” the decision. (Tr.
84–85.) However, subsequent testimony established that the Company does regularly prepare
termination reports; that there was a termination report for Wallace; and that it was circulated by
JD(SF)–05–16
41
Such shifting reasons support an inference of unlawful motive. See, e.g., Lucky Cab,
above; Naomi Knitting Plant, 328 NLRB 1279, 1283 (1999); Black Entertainment Television,
324 NLRB 1161 (1997); and Zurn Industries, 255 NLRB 632, 635 (1981), affd. 680 F.2d 683,
694 (9th Cir. 1982), cert. denied 462 U.S. 1131 (1983).
5
False reasons for discharge. As indicated above, Wallace did not interrupt Beake,
belligerently or otherwise, not even once. Nor did he make any dismissive gestures when he left
the meeting. See fn. 68, supra. Even the one consistent reason offered to the NLRB during the
investigation and hearing—that Wallace engaged in insubordination by leaving the mandatory
meeting early—is at best a distortion or exaggeration of the facts. As discussed above, Beake 10
twice stated to the employees that the meeting would “end” or “close” with the recorded message
from Norman McClelland. And he repeated this yet again when the recording had finished,
stating that it “close[d] out what [the Company] wanted to convey” to the employees. Thus,
while Beake thereafter offered to answer any questions, the offer was clearly a mere courtesy.
Such false or exaggerated reasons are likewise evidence of unlawful motive. See, e.g.,15
Lucky Cab, above; Key Food, 336 NLRB 111, 114 (2001); Yenkin-Majestic Paint Co., 321
NLRB 387, 396 (1996), enfd. mem. 124 F.3d 202 (6th Cir. 1997); Radisson Muehleback Hotel,
273 NLRB 1464, 1475–1476 (1985); William L. Meyers, Inc., 266 NLRB 342, 346 (1983), enfd.
mem. 735 F.2d 1371 (9th Cir. 1984); and Ramada Inn, 201 NLRB 431, 434-435 (1973). See also
Shattuck Denn Mining Corp., above.20
Lack of consultation or investigation. As previously noted, Daniels testified that he
decided to fire Wallace on his own, without consulting anyone—not his immediate superior
Beake (who he meets with daily and is the person Wallace allegedly disrespected), Vaivao (who
manages the Phoenix warehouse), or Myers (who supervised Wallace). Nor did he speak to
Wallace himself. (Tr. 711–712, 720–721). 25
However, there are two problems with this testimony. First, it is inherently unbelievable.
As indicated above, Daniels had been hired as HR vice president only 6 months earlier. Further,
he admitted on cross-examination that he focuses on “strategic matters” and is “not in the bowels
of the ship”; that he had “never” been involved in terminating a warehouse employee before; and 30
that he was unfamiliar with the Company’s policies, personnel handbook, or progressive
disciplinary system.73 Moreover, it is inconsistent with other evidence. As indicated above,
Vaivao told Wallace that the McClellands had made the decision. Further, Daniels testified that

email (Tr. 403–410). For this and the other reasons previously discussed, I ruled during the
hearing that the General Counsel was entitled to various evidentiary sanctions, including, on
request, appropriate adverse inferences. See fn. 29, above. However, the General Counsel’s
posthearing brief does not request an adverse inference that the discharge was unlawfully
motivated based on the Company’s subpoena noncompliance. And given all of the other direct
and circumstantial evidence of unlawful motive discussed above, it is unnecessary to adopt or
rely on an adverse inference.
73 Tr. 716–718. The handbook states: “Discipline will be administered utilizing the following
guidelines, but discipline may start at any level within this process: Step 1–Counseling; Step 2–
Verbal Warning; Step 3–Written Warning; Step 4–Final Warning/3-Day Suspension; Step 5–
Termination” (GC Exh. 3, p. 64). Daniels admitted that he did not consult the handbook or the
disciplinary guidelines in deciding to immediately terminate Wallace (Tr. 717–718).
JD(SF)–05–16
42
he told Allen to fire Wallace the very next day after the March 31 meeting, i.e. on April 1 (Tr.
720). However, Allen and Vaivao did not do so until April 6, allowing Wallace to continue
working on April 1, 3, and 5. And, as noted above, no explanation has been offered for the
delay.74
5
Second, even if Daniels did, in fact, make the decision in the confined and constricted
manner he described, this in itself is strong evidence of unlawful motive. As indicated above,
while Daniels may have had the authority to terminate warehouse employees, he did not have any
experience, knowledge, or responsibility regarding such disciplinary decisions at Shamrock.
Further, it takes little imagination to think of one or two common reasons why Wallace might 10
have had an urgent need to leave the meeting. Thus, if Daniels was truly concerned about
Wallace leaving the meeting during the open question period, it would have been natural (and
consistent with the Company’s desire to treat employees “like family”) to inquire why Wallace
had left before terminating him. Yet, Daniels never did so. Accordingly, it is a reasonable
inference that this was not the real reason for discharging him, but a pretext to conceal the 15
Company’s unlawful motive. See, e.g., Golden State Foods Corp., 340 NLRB 382, 385 (2003)
(respondent did not seek an explanation from employee before suspending him); Casa San
Miguel, Inc., 320 NLRB 534, 571 (1995) (respondent failed to consult with employees’
supervisor or even speak to the employees involved before disciplining them); and
Williams Services, 302 NLRB 492, 502 (1991) (respondent failed to consult with the site 20
manager or any of the employee’s immediate supervisors before terminating her).75
Finally, the Company has failed to satisfy its burden of showing that it would have taken
the same action anyway, regardless of Wallace’s protected conduct. Indeed, given that the
Company’s proffered reason or reasons for discharging Wallace were pretextual, the Company 25
has failed by definition to make such a showing. See, e.g., Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633, 639 (2011), enfd. sub. nom. Mathew Enterprise v. NLRB, 498 Fed. Appx. 45
(D.C. Cir. 2012); and Golden State Foods, above. Accordingly, the discharge of Wallace
violated Section 8(a)(1) and (3) of the Act, as alleged.76
30
b. The separation agreement
The General Counsel contends that the following three provisions of the separation
agreement were overbroad and unlawful under the first prong of the test in Lutheran Heritage,

74 I therefore discredit Daniels’ testimony. Rather, I find, consistent with Vaivao’s statements
at the April 6 termination meeting (which as previously noted constitute nonhearsay admissions),
that Beake and/or other managers met with or otherwise reported to the McClellands between
March 31 and April 6 what transpired at the meeting, and that the McClellands directed that
Wallace be discharged.
75 As discussed above, Myers, Wallace’s supervisor, also left the meeting early, and there is
no evidence that he was disciplined, much less discharged, for doing so. However, the General
Counsel’s posthearing brief does not rely on this disparate treatment as evidence of the
Company’s unlawful motive.
76 In light of the foregoing findings, it is unnecessary to address the General Counsel’s
alternative argument (Br. 55–56) that the discharge was unlawful under the standards set forth in
Atlantic Steel Co., 245 NLRB 814, 816 (1979) for evaluating when an employee’s outburst
during protected activity costs the employee the protection of the Act.
JD(SF)–05–16
43
supra, i.e. because employees would reasonably construe them to prohibit union or protected
activity:77
10. You agree that, except as may be required by law, you will not directly or
indirectly, use or disclose, or allow the use or disclosure, to any person, business, 5
firm, corporation, partnership or other entity any confidential, or proprietary
information concerning any of the Released Parties, its business, its suppliers or
its customers. All information, whether written or otherwise, regarding the
Released Parties’ businesses, including but not limited to financial, personnel or
corporate information and information regarding customers, customer lists, costs,10
prices, earnings, systems, operating procedures, prospective and executed
contracts and other business arrangements and sources of supply are presumed to
be confidential information of the Released Parties for purposes of this Agreement
. . . .
15
* * *
12. You have executed a Confidentiality Agreement and you acknowledge that the
terms of such agreement remain in effect notwithstanding the termination of your
employment. . . . You may not use/disclose any of the Company’s Confidential 20
Information for any reason following your termination and during the transition
period.
13. You agree not to make any disparaging remarks or take any action now, or at
any time in the future, which could be detrimental to the Released Parties. . . . 25
[GC Exh. 26, p. 3–4.]
The General Counsel’s position is well supported. The prohibitions in paragraphs 10 and
12 on disclosing “confidential information,” including any “personnel or corporate information,”
following termination of employment would reasonably be interpreted as prohibiting the 30
discussion of the Company’s wages, hours, and working conditions with a union or other third
person or entity. See Rocky Mountain Eye Center, P.C., 363 NLRB No. 34, slip op. at 1 n. 1, and
JD. at 7 (2015) (employer’s confidentiality agreement provided that “information about
physicians, other employees, and the internal affairs of [the company] are considered
confidential”); and DirectTV U.S., 359 NLRB No. 54, slip op. at 3 (2013), reaffd. 362 NLRB 35
No. 48, slip op. at 1 n. 1 (2015) (“confidentiality” provision in employer’s handbook instructed
employees to “[n]ever discuss details about your job, company business or work projects with
anyone outside the company” and to “[n]ever give out information about . . . employees,” and
expressly included “employee records” as one category of “company information” that must be
held confidential). See also Flex Frac Logistics, LLC v. NLRB, 746 F.3d 205, 209 (5th Cir. 40
2014).
Paragraph 13’s broad prohibition, without any accompanying explanation or illustrative
examples, on making “any disparaging remarks or tak[ing] any action now, or at any time in the
future, which could be detrimental” to the Company would likewise reasonably be interpreted to 45
prohibit or restrict union or protected activity. See Lily Transportation Corp., 362 NLRB No. 54

77 See discussion in sec. A.7 above.
JD(SF)–05–16
44
(2015), slip op. at 1 and JD at 8 (employer’s handbook rule stated that company would “use
every means available under the law to hold persons accountable for disparaging, negative, false,
or misleading information or comments involving [the company or its] employees and associates
on the internet and may take corrective action up to and including discharge of offending
employees”); First Transit, 360 NLRB No. 72, slip op. at 1 n. 5 (employer’s “disloyalty” rule5
prohibited employees from participating “in outside activities that are detrimental to the
company’s image or reputation, or where a conflict of interest exists,” or “conducting oneself
during nonworking hours in such a manner that the conduct would be detrimental to the interest
or reputation of the Company”); and Hills & Dales General Hospital, 360 NLRB No. 70 (2014)
(employer’s rules prohibited employees from “engaging in . . . negativity” or “mak[ing] negative 10
comments about our fellow team members, including coworkers and managers,” and required
employees to “represent [the company] in the community in a positive and professional
manner”).
Contrary to the Company’s contention, it makes no difference that the foregoing 15
provisions were contained in a separation agreement and that Wallace refused to sign it. Cf.
Metro Networks, 336 NLRB 63, 67 n. 20 (2001) (finding that the employer violated Section
8(a)(4) and (1) of the Act by offering unlawfully discharged employees severance agreements
that included overbroad nonassistance and nondisclosure provisions, notwithstanding that
employees refused to sign it). 20
The General Counsel also challenges paragraph 9 of the separation agreement, which
states:
9. Because the information in this Separation Agreement is confidential, it is 25
agreed that you will not disclose the terms of this Separation Agreement to
anyone, except that you may disclose the terms of this Separation Agreement to
your family, your attorney, your accountant, a state unemployment office, and to
the extent required by a valid court order or by law.
30
The General Counsel argues that this provision is likewise unlawful under Lutheran Heritage
because it “essentially prohibit[s] [Wallace] from discussing his discharge, a clear violation of
the Act” (Br. 57).
However, the provision cannot reasonably be construed in this manner. The separation 35
agreement and its terms say nothing about the underlying circumstances or reasons for the
discharge. Therefore, nothing in paragraph 9 prohibits disclosing those circumstances or reasons.
Accordingly, as the General Counsel has cited no other basis or authority for invalidating the
provision, the allegation is dismissed.
40
2. Mario Lerma
As discussed in section B. 7 above, on May 5 Operations VP Engdahl and Warehouse
Manager Vaivao met with Lerma to discuss “rumblings coming off the floor” about him
“heckling,” “insulting,” and engaging in “potential slowdown[s]” against coworkers who did not 45
support the union campaign. During the course of that meeting, Engdahl and Vaivao made
unlawful statements that created an overbroad rule that employees would reasonably construe as
prohibiting or restricting protected union activity, and threatened Lerma with reprisals if he
JD(SF)–05–16
45
violated that rule. The General Counsel alleges that Engdahl and Vaivao also unlawfully
disciplined Lerma at the May 5 meeting because of his protected union activities, and to
discourage him and other employees from engaging in such activities (GC Exh. 1(m), par.
6(a), (c)).78
5
The record supports the allegation. First, although the Company denies it, a
preponderance of the evidence establishes that Lerma was, in fact, disciplined at the meeting.
Indeed, Vaivao acknowledged at the hearing that the meeting was in the nature of a “counseling”
(Tr. 245), which as noted above (fn. 73) is the first step in the Company’s progressive
disciplinary process. This is consistent with Vaivao’s statement at the meeting that Lerma could 10
get in “deeper trouble” if employees continued to complain about him, a statement which both
confirmed that Lerma was already in trouble, and warned that he would be in even more trouble
in the future. Further, although Engdahl subsequently assured Lerma that he was “not getting in
trouble” at that time, he immediately cast a shadow over that assurance with a veiled warning that
Lerma would be terminated, the very last step in the progressive disciplinary process, the next 15
time. Cf. Altercare of Wadsworth, 355 NLRB 565 (2010) (finding that the employer’s verbal
warnings to several employees constituted discipline, even though they were not memorialized in
the employees’ personnel file, as such warnings were specifically included in the employer’s
progressive disciplinary system and the warnings were administered to the employees by high
level officials).20
Second, the evidence also establishes that the discipline was unlawful. Again, the parties
agree that the proper analysis is set forth in Wright Line.79 Applying that analysis, the General
Counsel clearly satisfied the initial burden. As discussed in section B.6 above, Lerma was a
prominent union supporter, the Company obviously knew it, and the Company’s animus is amply 25
demonstrated by its numerous other violations, including Supervisor Garcia’s unlawful search for
union cards on Lerma’s clipboard just a few days before the May 5 meeting. Moreover, as
previously discussed, Engdahl and Vaivao admitted that they did not even investigate the alleged
complaints about Lerma’s “heckling,” “insulting,” and “potential slowdown[s].” As discussed
above with respect to Wallace’s discharge, this admission is strong circumstantial evidence that30
Lerma’s alleged misconduct was not the real reason for disciplining him, but a pretext to conceal
the Company’s true motive: to discourage Lerma from continuing to solicit support for the union.
It also effectively prevents the Company from satisfying its rebuttal burden of establishing that it
would have disciplined Lerma anyway, even if he had not engaged in the alleged misconduct.
Accordingly, the discipline violated Section 8(a)(3) of the Act as alleged.35

78 The complaint and amended complaint allege that, like Wallace, Lerma was also
disciplined because he engaged in other protected concerted activities, in violation of Section
8(a)(1) of the Act. However, the General Counsel’s posthearing brief argues only that Lerma
was disciplined because of his union activities, in violation of Section 8(a)(3). Accordingly, the
independent 8(a)(1) discipline allegation appears to have been abandoned. In any event, the
General Counsel failed to carry the burden of proof and persuasion.
79 No party asserts that the discipline should be evaluated under the Burnup & Sims analysis
applicable where an employer disciplines an employee for misconduct during the course of
protected activity. See NLRB v. Burnup & Sims, 379 U.S. 21 (1964).
JD(SF)–05–16
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D. Alleged Unlawful Employee Handbook Rules
The General Counsel alleges that the Company has maintained numerous rules in its
Associate Handbook during the same period that are unlawfully overbroad under the first prong
of the Lutheran Heritage test, i.e. because employees would reasonably construe them to prohibit 5
or restrict protected activity (GC Exh. 1(g), pars. 5(b)–(e); Tr. 750–752). 80
1. Company confidential information
The handbook contains numerous sections, including one entitled “Protecting the
Company’s Confidential Information.” It states in relevant part as follows:
10
The Company’s confidential information is a valuable asset and includes:
information, knowledge, or data concerning costs, commission reports or
payments, purchasing, profits, markets, sales, discounts, margins, customer
histories or preferences, relationships with vendors, organization structures,
associates, customers, surveys, customer lists, lists of prospective customers, 15
customer account records, marketing plans or efforts, sales records, training and
service materials, Company manuals and policies, computer programs, software
and disks, order guides, financial statements and projections, business plans,
budgets, supplier lists, contracts, calendars and/or day-timers that contain
customer contact and other customer information, compensation schedules, 20
proposals and quotes for business, notes regarding customers and prospective
customers and pricing information.
This information is the property of the Company and may be protected by patent,
trademark, copyright and trade secret laws. All confidential information must be 25
used for Company business purposes only. Every associate, agent, and contractor
must safeguard it. THIS RESPONSIBILITY INCLUDES NOT DISCLOSING
THE COMPANY CONFIDENTIAL INFORMATION, INCLUDING
INFORMATION REGARDING THE COMPANY’S PRODUCTS OR
BUSINESS, OVER THE INTERNET, INCLUDING THROUGH SOCIAL 30
MEDIA. . . .
(i) Non-Disclosure/Assignment Agreement. When you joined the Company, you
signed an agreement to protect and hold confidential the Company’s proprietary
information. This agreement remains in effect for as long as you work for the 35
Company and after you leave the Company. Under this agreement you may not
disclose the Company’s confidential information to anyone or use it to benefit
anyone other than the Company without the prior written consent of an authorized
Company officer. . . . [GC Ex. 3, pp. 8–9.]
40

80 See discussion in sec. A.7 above. Although the complaint alleges that the rules are also
discriminatory, the General Counsel’s posthearing brief argues only that they are overbroad, and
thus appears to abandon that allegation. In any event, the General Counsel has failed to carry the
burden of proof and persuasion.
JD(SF)–05–16
47
Like the confidentiality provisions in the Company’s separation agreement, the broad
provisions of the foregoing rule, which designate as confidential any “information, knowledge, or
data” concerning “associates” (i.e. employees), “Company manuals and policies,” and
“compensation schedules,” would reasonably be interpreted to prohibit employees from
discussing wages, hours, and working conditions with a union or other third person or entity. 5
Accordingly, the provisions violate Section 8(a)(1) of the Act as alleged. See cases cited in sec.
C.1.b above.
2. Government information requests
The handbook also includes a section entitled “Handling the Confidential Information of 10
Others.” It contains seven subsections, including one entitled “Requests by Regulatory
Authorities,” which states:
The Company and its associates must cooperate with appropriate government
inquiries and investigations. In this context, however, it is important to protect the 15
legal rights of the Company with respect to its confidential information. All
government requests for information, documents or investigative interviews must
be referred to the Company’s Human Resources Department. No financial
information may be disclosed without the prior approval of the Company’s
President or Chief Financial Officer. [GC Exh. 3, p. 11]20
The General Counsel argues that this provision would reasonably be interpreted to require
employees to refer NLRB requests for documents or investigative interviews to the Company,
thereby interfering with the investigation of unfair labor practice charges.
25
Reading the provision in isolation, the General Counsel’s argument is well supported by
Board precedent. See DirectTV, above, 359 NLRB No. 54, slip op. at 3 (employer’s handbook
stated that, “[i]f law enforcement wants to interview or obtain information regarding a [company]
employee . . . the employee should contact the security department . . . who will handle contact
with law enforcement agencies and any needed coordination with [company] departments”). See 30
also Management Consulting, Inc., 349 NLRB 249 (2007), and cases cited there (employer
statements that discourage employees from providing information and hinder the Board’s
investigation of unfair labor practice charges violate Section 8(a)(1) of the Act).
However, in evaluating whether a challenged rule is unlawful, the Board does not read 35
particular phrases in isolation. Lutheran Heritage, 343 NLRB at 646. Here, as indicated above,
the subject provision is actually a subsection of a broader section. The introductory paragraph of
that section indicates that it deals only with confidential information provided to the Company by
“third party” companies and individuals that the Company has, or may eventually have, “business
relationships” with. Thus, the Company argues that, read in context, the subject provision would 40
not reasonably be interpreted to encompass government requests for information about its own
employees or their wages, hours, and working conditions.
The Company’s argument is a reasonable one. Further, the General Counsel, who has the
burden of proof and persuasion, offers no rebuttal to it, instead simply ignoring the context of the 45
provision. See GC’s Br. at 68. Accordingly, this allegation is dismissed. See generally
JD(SF)–05–16
48
Professional Medical Transport, Inc., 362 NLRB No. 19, slip op. at 13 (2015); and Desert
Toyota, 346 NLRB 110, 115 (2005).
3. Media information requests
Another subsection under the same section is entitled “Company Spokespeople.” It5
states:
The Company has an established Spokesperson who handles all requests for
information from the Media. Ms. Sandra Kelly at the Dairy is the person who has
been designated to provide overall Company information or to respond to any
public events or issues for which we might receive press calls or inquiries. If you 10
believe that an event or situation may result in the press seeking additional
information, please contact Ms. Kelly at the Dairy to advise her of the nature of
the situation so that she may be prepared for any calls. Only the Company’s CEO
may authorize another associate to speak on behalf of the Company. [GC Exh. 3,
p. 11].15
The General Counsel argues that this provision would reasonably be interpreted to require
employees to disclose to the Company whenever they have plans to publicize matters related to
their terms and conditions of employment or a union organizing campaign, thereby unlawfully
interfering with their right to freely do so and discouraging them from engaging in such protected 20
activity. Again, however, the General Counsel fails to acknowledge or address the fact that the
provision is set forth in a section that is limited to confidential information provided to the
Company by “third party” companies and individuals that the Company has, or may eventually
have, “business relationships” with. Accordingly, this allegation is dismissed as well.
25
4. Company electronic and telephonic communications systems
The handbook also includes a section entitled “Electronic and Telephonic
Communications.” The introductory paragraphs of the section state in relevant part:
All electronic and telephonic communications systems and all communications 30
and information transmitted by, received from, or stored in these systems are the
property of Shamrock and as such are to be used solely for job-related purposes.
The use of any software and business equipment, including, but not limited to,
facsimiles, computers, the Company’s E-mail system, the Internet, and copy
machines for private purposes is strictly prohibited. . . .35
Moreover, improper use of the E-mail system (e.g., spreading offensive jokes or
remarks), including the Internet, will not be tolerated. [GC Exh. 3, p. 59]
The General Counsel contends that the first paragraph is unlawful because it prohibits
employees from using the Company’s email and other electronic and telephone systems for union 40
or other protected activities even during nonworking time, citing Purple Communications, Inc.,
361 NLRB No. 126 (2014) (holding that employers must allow employees to use their company
email accounts for protected communications during nonworking time absent special
circumstances making a ban necessary to maintain production or discipline). The General
JD(SF)–05–16
49
Counsel contends that the second provision is unlawfully overbroad because employees would
reasonably construe the ban on “improper” use of such systems to include protected conduct.
However, the Board in Purple Communications made clear that such usage restrictions
are only unlawful if employees actually have access to the employer’s systems. See slip op. at 1, 5
3, and 5. See also UPMC, 362 NLRB No. 191, slip op. at 3 (2015). As indicated by the
Company, the record here fails to establish that the warehouse employees have such access.
Former HR Manager Wright specifically testified that they do not have access to the email
system (Tr. 375), and no evidence was presented to rebut her testimony or to establish that the
employees have access to other electronic and telephone systems.81 Accordingly, this allegation 10
is also dismissed.
5. Monitoring use
The same section includes a subsection entitled “Monitoring Use.” It states in relevant
part:
15
To ensure that the use of electronic and telephonic communications systems and
business equipment is consistent with Shamrock legitimate business interests,
authorized representatives of Shamrock may monitor the use of such equipment
from time to time. This includes monitoring internet usage of any kind. This may
also include listening to stored voicemail messages. In some functions, telephone20
monitoring is used to assist in associate training and the development of quality
customer service: The associate will be notified if telephone monitoring is
applicable to their area.
In addition, Shamrock reserves the right to use software and blog-search tools to 25
monitor comments or discussions about company representatives, customers,
vendors, other associates, the company and its business and products, or
competitors that associates or non-associates post anywhere on the Internet,
including in blogs and other types of openly accessible personal journals, diaries,
and personal and business discussion forums.30
Shamrock cautions that associates should have no expectation of privacy while
using company equipment and facilities for any purpose. [GC Exh. 3, p. 59.]
The General Counsel contends that the second paragraph above is unlawful because it 35
creates the impression that the Company will engage in surveillance of employees’ protected
activities on the internet. The General Counsel acknowledges that the Board in Purple
Communications stated that an employer could monitor its computers and email systems for
legitimate management reasons, and could also notify its employees that it would do so.
However, the General Counsel argues that the second paragraph is nevertheless unlawful because 40
it is not limited to monitoring the Company’s computers and email system, but includes
comments or discussions employees post using their personal computers or email accounts.

81 Arguably, the fact that the email provision is contained in the employee handbook is itself
circumstantial evidence that employees have email access. However, the General Counsel’s
posthearing brief does not make this argument. Indeed, it does not even address the access issue.
JD(SF)–05–16
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However, as indicated above, the introductory paragraphs of the section indicate that the
subsection only applies to company computer and email systems. This is also apparent from the
first and third paragraphs of the subsection itself. Again, the General Counsel’s posthearing brief
fails to acknowledge or address this factual context.82 Accordingly, this allegation is dismissed as 5
well.
6. Instant messaging
The same section also includes a subsection entitled “E-mail,” which states:
Associates are prohibited from using any Instant Messaging applications except 10
those provided specially by Shamrock for Associate’s business use. External E-
mail messages may carry one or more attachments. An attachment may be any
kind of computer file, such as a word processing document, spreadsheet, software
program, or graphic image. [GC Exh. 3, p. 60.]
The General Counsel contends that this provision is unlawful for the same reasons the 15
previous two provisions above are unlawful, i.e. because it prohibits employees from using
company computer systems to send instant messages about union or other protected activity even
during nonworking time, and because it is not limited to company computer systems, and thus
employees would reasonably conclude that the rule also prohibits them from doing so on their
personal computer systems or devices.20
Both arguments again fail for the same reasons discussed above. There is no evidence
that the employees have access to company computer systems to send instant messages, and the
introductory paragraphs of the section in which the subsection appears indicate that the
subsection only applies to instant messaging on company computer systems. Accordingly, this
allegation is likewise dismissed.25
7. World Wide Web
The same section also includes a subsection entitled “World Wide Web,” which states in
relevant part:
As a general rule, associates may not forward, distribute, or incorporate into
another work, material retrieved from a Web site or other external system. Very 30
limited or “fair use” may be permitted in certain circumstances. Any associate
desiring to reproduce or store the contents of a screen or Web site should contact
their Supervisor to ascertain whether the intended use is permissible.
Use of the World Wide Web includes all restrictions, which apply generally to the 35
use of the Company’s E-mail and other electronic and telephonic equipment, as
noted above. In addition, the following rules apply with respect to Internet usage:

82 Like the complaint, the General Counsel’s posthearing brief sets forth only the second
paragraph of the subsection. It omits the first and third paragraphs without any signal, notation,
or explanation.
JD(SF)–05–16
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* * *
2. No Downloading of Non-Business Related Data: The Company allows the
download of files from the Internet. However, downloading files should be
limited to those that relate directly to Shamrock business. 5
* * *
4. No Participation in Web-Based Surveys without Authorization: When using the
Internet, the user implicitly involves Shamrock in his/her expression. Therefore,
users should not participate in Web or E-mail based surveys or interviews without 10
authorization. [GC Exh. 3, p. 60.]
The General Counsel contends that this provision is unlawful for similar reasons, i.e.
because (1) it would reasonably be read by employees to (a) prohibit them downloading,
forwarding or distributing to coworkers information from the internet or other external source
about a union, the Company, or the employees and their terms and conditions of employment;15
and (b) require them to obtain the Company’s authorization to participate in surveys from unions
about their concerns or interest in union representation; (2) “there is no language in the provision
indicating that it was intended to apply only to use of the [Company’s] computer system and
equipment”; and (3) even if the provision is limited to the Company’s computer systems and
equipment, the Company has failed to show special circumstances for the restrictions as required 20
by the Board’s decision in Purple Communications, above (GC Br. 74–75).
All of these arguments again fail for the same reasons discussed above. Both the context
and the content of the provision indicate that it applies only to company computers and
equipment,83 and there is no evidence the employees have access to them. Accordingly, this
allegation is also dismissed.25
8. Blogging
The same section also includes a subsection entitled “Blogging,” which states:
The following rules and guidelines apply to blogging, whether blogging is done
for Shamrock on company time, on a personal Web site during non-work time, or
outside the workplace. The rules and guidelines apply to all associates. 30
[1.] Shamrock discourages associates from discussing publicly any work-related
matters, whether confidential or not, outside company-authorized
communications. Nonofficial company communications include Internet chat
rooms, associates’ personal blogs and similar forms of online journals or diaries, 35
personal newsletters on the Internet, and blogs on Web sites not affiliated with,
sponsored, or maintained by Shamrock.

83 Again, the General Counsel’s posthearing brief omits and entirely ignores the first sentence
of the second paragraph of the provision referencing “the Company’s E-mail and other electronic
and telephonic equipment.”
JD(SF)–05–16
52
[2.] Associates have a duty to protect associates’ home addresses, social security
numbers, birth date, driver’s license number, and other personal information and
the confidentiality of Shamrock trade secrets, marketing lists, customer account
information, strategic business plans, competitor intelligence, financial
information, business contracts, and other proprietary and nonpublic company 5
information that associates can access.
[3.] Associates cannot use blogs to harass, threaten, libel, or slander, malign,
defame or disparage, or discriminate against co-workers, managers, customers,
clients, vendors or suppliers, and organizations associated or doing business with 10
Shamrock, or any members of the public, including Web site visitors who post
comments about blog contents.
[4.] Associates who maintain blogs on their own or another Web site and choose
to identify themselves as associates of Shamrock are strongly encouraged to state 15
explicitly, clearly, and in a prominent place on the site that views expressed in
their blogs are associates’ own and not those of Shamrock or of any person or
organization affiliated or doing business with Shamrock.
[5.] Shamrock respects associates’ right to express personal opinions in personal 20
blogs and does not retaliate or discriminate against associates who use their blogs
for political, organizing, or other lawful purposes.
[6.] Associates cannot use Shamrock’s logo or trademarks or the name, logo, or
trademarks of any business partner, supplier, vendor, affiliate, or subsidiary on 25
any personal blogs or other online sites unless their use is sponsored or otherwise
sanctioned, approved, or maintained by Shamrock.
[7.] Associates cannot post on personal blogs Shamrock’s copyrighted
information or company-issued documents bearing Shamrock’s name, trademark, 30
or logo.
[8.] Associates cannot post on personal blogs photographs of company events,
other associates or company representatives engaged in Shamrock’s business, or
company products, unless associates have received Shamrock’s explicit 35
permission.
[9.] Associates cannot advertise or sell company products or services via personal
blogs.
40
[10 .] Shamrock discourages associates from linking to Shamrock’s external or
internal Web site from personal blogs.
[11.] Shamrock will not construe this policy nor apply it in a manner that
interferes with associates’ rights under Section 7 of the NLRA. [GC Exh. 3, pp.
61–62.]45
JD(SF)–05–16
53
The General Counsel contends that the foregoing provision is unlawful because (1) it
explicitly states that it applies outside the workplace; and (2) paragraphs 1–3, 6–8, and 10 would
reasonably be read by employees to prohibit or limit their right to engage in protected union or
other concerted activities (GC Br. 78–80).
As indicated by the General Counsel, unlike the other subsections discussed above, this 5
subsection clearly indicates that it is not limited to company computers and equipment. Thus, the
subject paragraphs must be evaluated to determine whether they would reasonably be construed
to prohibit or restrict employees from using their personal computers or other devices to engage
in union or other protected communications or discussions on the internet.
10
Paragraph 1. The broad language of this paragraph, discouraging employees from
publicly discussing on the internet “any work-related matters, whether confidential or not,”
would reasonably be interpreted by employees to encompass online discussions relating to
employee terms and conditions of employment. Accordingly, it is overbroad. See Triple Play
Sports Bar & Grille, 361 NLRB No. 31 (2014), affd. ___ Fed. Appx. ___, 2015 WL 6161477 (2d 15
Cir. Oct. 21, 2015).84
Paragraph 2. This paragraph, which requires employees to “protect” their coworkers’
“home addresses” and “other personal information,” and the confidentiality of accessible
company “financial information” and “nonpublic information,” would reasonably be construed to 20
prohibit or restrict employees from disclosing their coworkers’ contact information and wages,
hours, and working conditions as part of a union organizing or public campaign to improve their
terms and conditions of employment. Accordingly, like the similar confidentiality provisions in
the Wallace separation agreement and handbook section on company confidential information, it
is overbroad. See secs. C.1.b, and D.1, above, and cases cited there. See also Rio All-Suites 25
Hotel & Casino, 362 NLRB No. 190, slip op. at 2 (2015) (“confidentiality” provision in
employer’s handbook prohibited employees from disclosing “to anyone outside the company,
indirectly or directly,” including “participation in internet chat rooms or message boards,” “any
information about the company which has not been shared by the company with the general
public,” including but not limited to “organizational charts, salary structures, [and] policy and 30
procedures manuals”); and Lily Transportation, 362 NLRB No. 54, slip op. at 1 nn. 2, 3 and JD.
at 6–7 (provisions in employer handbook prohibited employees from disclosing “employee
information maintained in confidential personnel files” and from posting on the internet
“information or comments about [the company or its] . . . employees or employees’ work that
have not been approved by [the company]”).35
Paragraph 3. This paragraph, which prohibits employees from using blogs to, among
other things, “malign” or “disparage” coworkers or managers, would reasonably be interpreted
by employees to include protected union or other concerted activity. Thus, like the similar
provision in the Wallace separation agreement, it is overbroad. See sec. C.1.b, above, and cases
cited there. See also UPMC, 362 NLRB No. 191, slip op. at 2 n. 5 and JD. at 24–25 (employer’s 40
acceptable-use policy prohibited employees, without prior written consent, from using company
computers, even on nonworking time, to establish or participate in websites or social networks

84 The Company does not contend that this paragraph (or paragraph 10) is lawful because it
uses the word “discourages,” rather than “prohibits.” In any event, Board precedent indicates to
the contrary. See Boeing Co., 362 NLRB No. 195 (2015), and cases cited there.
JD(SF)–05–16
54
that “disparage or misrepresent,” or make “false or misleading statements regarding” the
company).
Paragraphs 6 & 7. These provisions, which prohibit or require approval for employees to
use Shamrock’s logo or trademarks, or post copyrighted information in documents containing its
name, trademark, or logo, on any personal blogs or other online sites, are also overbroad. See id., 5
slip op. at 2 n. 5 and JD. at 25, and cases cited there.
Paragraph 8. This provision, which requires company permission to post on personal
blogs photos of company events, coworkers or company representatives engaged in company
business, or company products, would reasonably be interpreted to encompass photos 10
documenting unsafe or hazardous working conditions and equipment or other evidence relevant
to employment-related disputes. Accordingly, it is likewise overbroad. See Whole Foods
Market, Inc., 363 NLRB No. 87 (2015) (employer’s rule prohibited all recording, including using
cameras to record images, without prior approval of the company or consent of all parties); and
Rio All-Suites Hotel, 362 NLRB No. 190, slip op. at 3–4 (employer’s rule banned use of cameras, 15
camera phones, audio-visual and other recording equipment on company property without
authorization), and cases cited there. See also the cases cited above with respect to paragraphs 1–
3.
Paragraph 10. This provision, which discourages employees from linking to Shamrock’s 20
external website from personal blogs, would restrict employees’ ability to identify or direct
others to the Company’s website in discussing company policies or terms and conditions of
employment. Accordingly, it is overbroad as well. Cf. UPMC, above.
Finally, the Company does not contend that any of the foregoing paragraphs are saved by
the general qualifiers or disclaimers set forth in paragraphs 5 and 11 regarding employees’ “right 25
to express personal opinions” about “organizing” and other “rights under Section 7 of the
NLRA.” Indeed, neither the General Counsel nor the Company even mention these provisions in
their posthearing briefs. In any event, Board precedent indicates that they are insufficient to do
so. See Solarcity Corp., 363 NLRB No. 83, slip op. at 6 (2015), and cases cited there.
Accordingly, all seven paragraphs violate the Act as alleged.30
9. Guideline to prohibited activities
The same section also includes a subsection entitled “Guideline to Prohibited Activities.” It
states in relevant part:
35
The following behaviors are examples of previously stated or additional actions to
activities that are prohibited and considered improper use of the Internet, E-mail
or voicemail systems provided by Shamrock. These examples are provided as
guidelines only and are not all-inclusive:
40
[1.] Sending or posting confidential material, trade secrets, or proprietary
information outside of the organization.
* * *
[13.] Refusing to cooperate with security investigations. 45
JD(SF)–05–16
55
[14.] Sending or posting chain letters, solicitations, or advertisements not related
to business purposes or activities.
* * *5
[16.] Sending or posting messages that disparage another organization.
* * *
Shamrock will not construe this policy nor apply it in a manner that interferes
with associates’ rights under Section 7 of the NLRA. [GC Exh. 3, p. 62].10
The General Counsel contends that this subsection is unlawfully overbroad for essentially
the same reasons as the previous subsection discussed above. However, unlike that subsection,
this subsection indicates that it applies only to Company computers and equipment. And, as
previously discussed, there is no evidence the employees have access them. Accordingly, this 15
allegation is dismissed.85
10. Reporting violations
The same section also includes a subsection entitled “Reporting Violations,” which
states:20
Shamrock requests and urges associates to use official company communications
to report violations of Shamrock’s blogging rules and guidelines, customers’ or
associates’ complaints about blog content, or perceived misconduct or possible
unlawful activity related to blogging, including security breaches, 25
misappropriation or theft of proprietary business information, and trademark
infringement. Associates can report actual or perceived violations to supervisors,
other managers, or to Human Resources.
As a condition of employment and continued employment, associates are required 30
to sign an Electronic and Telephonic Communications Acknowledgement Form.
Applicants are required to sign this form on acceptance of an employment offer
by Shamrock.
As discussed above, the Company’s blogging rule is unlawfully overbroad, i.e., it would 35
reasonably be read to prohibit or restrict protected union or other concerted activities. Thus, as
indicated by the General Counsel, this provision effectively solicits employees to report such
protected activities to the Company. Accordingly, it is unlawful. See Montgomery Ward, 269
NLRB 598, 600 (1984) (employer’s no-distribution rule directed employees to report conduct
that it unlawfully prohibited). See also Bill’s Electric, Inc., 350 NLRB 292, 306 (2007); and 40
Dillon Cos., 340 NLRB 1260, 1267 (2003).

85 As with the previous subsection, the Company does not contend that this subsection is
saved by the last sentence purporting to preserve employees’ “rights under Section 7 of the
NLRA.”
JD(SF)–05–16
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11. Guidelines to appropriate conduct
The handbook also contains a section entitled “Guidelines to Appropriate Conduct.” It
states in relevant part as follows:
5
Listed below are some of the rules and regulations of Shamrock. This list should
not be viewed as all-inclusive. It is intended only to illustrate the types of
behavior and conduct that Shamrock considers inappropriate and grounds for
disciplinary action up to and including termination of employment without prior
warning, at the sole discretion of the company, including, but not limited to, the 10
following:
* * *
[2.] Theft and/or deliberate damage or destruction of property not belonging to the
associate, including the misuse or unauthorized use of any products, property, 15
tools, equipment of any person or the unauthorized use of any company-owned
equipment.
* * *
[6.] Any act that interferes with another associate’s right to be free from 20
harassment or prevents an associate’s enjoyment of work, including sexual or
other harassment, wasting the associate’s time, harming or placing the associate in
harm’s way, immoral or indecent conduct or conduct that creates a disturbance in
the workplace.
25
Shamrock will not construe this policy nor apply it in a manner that interferes
with associates’ rights under Section 7 of the National Labor Relations Act. [GC
Exh. 3, pp. 83–84.]
The General Counsel alleges that paragraph 2 above is unlawfully overbroad because 30
employees “would reasonably understand it to encompass their use of [the Company’s] email
system or their engaging in conduct that [the Company] considered ‘misuse’ of that system,”
including protected communications on nonworking time (Br. 84). However, as discussed
above, the employees do not have access to the Company’s email system. Accordingly, this
allegation is dismissed.35
Unlike paragraph 2, paragraph 6 is not limited to use of the Company’s computers or
other equipment. Further, as indicated by the General Counsel, its broad prohibition on “any
act” that “prevents an associate’s enjoyment of work,” including “conduct that creates a
disturbance in the workplace” would reasonably be understood to encompass protected union or 40
other concerted activities.86 See Ryder Transportation Services, 341 NLRB 761 (2004) (“It is
well settled that the Act allows employees to engage in persistent union solicitation even when it

86 The General Counsel’s posthearing brief also argues that the term “harassment” would
reasonably be interpreted by employees to include protected conduct. However, Lutheran
Heritage itself held to the contrary, 343 NLRB at 648–649, and the General Counsel cites no
legal or factual basis for distinguishing that case.
JD(SF)–05–16
57
annoys or disturbs the employees who are being solicited.”), enfd. 401 F.3d 815 (7th Cir. 2005).
See also the discussion and cases cited in section B.7 above. Finally, as with other provisions,
the Company does not contend that this provision is saved by the last sentence of the section
purporting to preserve employees’ “rights under Section 7 of the [NLRA].” Accordingly, the
provision is unlawful.5
12. No solicitation or distribution
The handbook also includes a section entitled “No Solicitation, No Distribution,” which
states:10
Shamrock believes that the work time of our associates should be devoted to their
work-related activities, and that it is neither safe nor productive for our associates
to be distracted by individuals engaged in non-work related activities during work
time or in work areas. Thus, the conducting of non-company business related 15
activities is prohibited during the working time by either the associate doing the
soliciting or the associate being solicited or at any time in customer or public
areas. Associates may not solicit other associates under any circumstances for any
non-company related activities.
20
The distribution of non-company literature, such as leaflets, letters or other written
materials by an associate is not permitted during the working time of either the
associate doing the distributing or the associate to whom the non-company
literature is being distributed, or any time in working areas or in customer and
public areas.25
It is important that we keep our associates informed on all matters that involve
them. Company bulletin boards/email is our primary means for posting notices
and other materials related to our associates and our business. In order to avoid
any confusion over what may or may not be posted on Shamrock bulletin boards,30
and to avoid obscuring important business-related materials with items which are
of a personal nature, Shamrock bulletin boards are to be used solely for the
posting of Shamrock business-related notices and materials. If you would like to
post any Shamrock business-related materials, please see your Department
Manager, the General Branch Manager or the Human Resources Representative. 35
Only these Individuals are authorized to approve and post information on
Shamrock bulletin boards. [GC Exh. 3, p. 65.]
The first and second paragraphs of this section explicitly ban soliciting or distributing in
customer or public areas at any time. Thus, as indicated by the General Counsel, they would 40
reasonably be construed to prohibit off-duty employees from engaging in union solicitation or
distribution in such areas, including in parking lots and other public nonworking areas between
shifts. Accordingly, they are unlawful. See Times Publishing Co., 231 NLRB 207 (1977), enfd.
in relevant part and remanded on other grounds 576 F.2d 1107 (5th Cir. 1978) (employer’s rule
prohibited solicitation and distribution in public areas at any time); and Bankers Club, Inc., 218 45
NLRB 22, 27 (1975) (employer’s rule banned solicitation or distribution in customer areas at any
time), cited with approval in Purple Communications, 362 NLRB No. 126, slip op. at 13. See
JD(SF)–05–16
58
also Golub Corp., 338 NLRB 515 (2002); and Flamingo Hilton-Laughlin, 330 NLRB 287, 288
(1999), and cases cited there.
The General Counsel contends that the first paragraph is also overbroad because it bans,
not just soliciting, but also “the conducting of non-company business related activities” during 5
working time. The General Counsel argues that this language “would reasonably be read to
prohibit employees from discussing their working conditions or . . . the state of an organizing
campaign during working time, even though there is no restriction on other types of discussions
at the facility.” (Br. 86.) However, there are two problems with this argument. First, both the
title of the section and the remainder of the paragraph indicate that the term “non-company 10
business” refers to soliciting. Second, the General Counsel cites no record evidence that the
Company actually permits discussions about personal matters other than working conditions and
union organizing during working time. Cf. Hertz Corp., 316 NLRB 672, 687 (1995) (record
evidence established that the employer had not enforced any restrictions on what employees
could say to each other in working areas during working time). The argument therefore fails.15
The General Counsel also alleges that the third paragraph is unlawful because it requires
employees to seek approval before posting any information at the facility, including in
nonworking areas, citing Brunswick Corp., 282 NLRB 794, 795 (1987). However, Brunswick
involved a no-solicitation rule, not a no-posting rule. Unlike with solicitation/distribution, the 20
law permits an employer to prohibit employees from posting materials anytime and anywhere in
the facility as long as the employer does not apply the ban in a discriminatory manner. Flamingo
Hilton, 330 NLRB 287, 293 (1999). See also St. Francis Medical Center, 347 NLRB 368, 370
(2006) (“The comparison between solicitation/distribution and posting is a comparison of ‘apples
to oranges’.”). The General Counsel does not contend or cite any record evidence that the 25
Company has applied its no-posting rule in a discriminatory manner. Accordingly, this allegation
is dismissed.
13. Cell phone use
30
Finally, the General Counsel also alleges that the Company has unlawfully promulgated
and maintained an overbroad cell phone rule (Tr. 750, 844). The rule is set forth in a January 2,
2015 memorandum that the Company posted entitled “Head/Ear & Cell Phone Use.” The memo
states:
35
In an effort to improve the workplace safety environment, ensure the safety of our
associates and to maintain compliance with State, Federal and regulatory
agencies, the use of all musical devices to include, but not limited to cell phones
and head/ear phone use within the warehouse is being discontinued effective
January 4, 2015.40
Beyond the impact of the individual noise level, personal music devices create a
potential hazard. They impair a worker’s ability to hear surrounding sounds and
compromise the user’s general alertness and concentration; therefore they may be
considered a hazard within the workplace. This is especially true if working
around moving equipment or in circumstances where a worker must be able to 45
hear warning sounds.
JD(SF)–05–16
59
An EMERGENCY phone line is in place should a family member need to be
contacted while at work and the message will be relayed to you. This line is for
emergency use ONLY. [GC Exh. 27].
The General Counsel argues that the foregoing memo sets forth a “a sweeping prohibition
on the use of cell phones,” which would reasonably be interpreted “to ban the use of cell phones 5
for any purpose whatsoever, including recording working conditions for any number of reasons
protected under the Act.” The General Counsel contends that it is therefore unlawful, citing Rio
All-Suites Hotel, 362 NLRB No. 190, slip op. at 4 (employer’s rule banned use of cameras or any
other type of audio visual recording equipment unless authorized for business purposes). (Br.
87.) 10
As indicated by the Company, however, the rule on its face does not ban employees from
carrying cell phones or using them to take pictures or videos. Rather, it is clear from both the
rule and the accompanying explanation/justification in the memo that the ban is limited to the
use of cell phones for listening to music or making or receiving calls.87 Accordingly, this
allegation is dismissed.15
CONCLUSIONS OF LAW
1. The Respondent Company engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
20
a. Threatening employees at a January 28, 2015 town hall meeting that they would
lose benefits if they supported a union.
b. Soliciting employees’ complaints and grievances and promising to remedy them at
a January 28 roundtable meeting if employees refrained from supporting a union.25
c. Soliciting employees’ complaints and grievances and promising to remedy them at
a February 5 communication meeting if employees refrained from supporting a union.
d. Telling employees at a February 24 union education meeting to report to 30
management if union supporters solicited them to sign a union card.
e. Promising or granting benefits to employees on April 29 by committing, both at a
communication meeting and in writing, that employees would not be laid off, to discourage
support for a union.35
f. Threatening employees at the April 29 communication meeting with unspecified
reprisals if they supported a union.
g. Informing employees at the April 29 communication meeting that it would be futile 40
for them to support a union.

87 Again, the General Counsel’s posthearing brief omits and entirely ignores the second and
third paragraphs of the memo.
JD(SF)–05–16
60
2. The Company also engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
a. Interrogating an employee on January 28, 2015 about whether he supported a
union.5
b. Surveilling employees’ union activities on January 28.
c. Creating the impression of surveilling an employee’s union activities on April 27.
10
d. Surveilling employees’ union activities on April 29.
e. Interrogating employees about their union activities on April 29.
f. Surveilling and creating the impression of surveilling an employee’s union activities 15
on May 1.
g. Orally promulgating a discriminatory and overbroad rule at a May 5 meeting with
an employee that prohibited union supporters from “heckling” or “insulting” employees or
soliciting in a manner “where somebody could perceive it as intimidation” or “feel threatened or 20
intimidated,” and threatening the employee with reprisals if he violated the above rule.
h. Promulgating a discriminatory and overbroad rule in a May 8 letter to all
employees that prohibited union supporters from engaging in “unlawful bullying” or “unlawfully
coercive behavior,” requesting employees to report to management if the rule was violated, and 25
threatening to refer violations of the rule to law enforcement for prosecution.
i. Taking union flyers away from employees on May 25.
j. Interrogating employees on May 25 about whether they supported the union.30
k. Granting wage increases to employees on May 29 to discourage support for the
union.
3. The Company also engaged in unfair labor practices affecting commerce within the 35
meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:
a. Maintaining an overbroad rule in its Associate Handbook on “Protecting the
Company’s Confidential Information” since at least October 15, 2014 that designates as
confidential any “information, knowledge, or data” concerning “associates,” “Company manuals 40
and policies,” and “compensation schedules.”
b. Maintaining an overbroad rule in the handbook on “Blogging” since the same date
that:
45
1. Discourages employees from publicly discussing on the internet “any work-
related matters, whether confidential or not.”
JD(SF)–05–16
61
2. Requires employees to “protect” their coworkers’ “home addresses” and “other
personal information,” and the confidentiality of accessible company “financial information” and
“nonpublic information.”
3. Prohibits employees from using blogs to “malign” or “disparage” coworkers or 5
managers.
4. Prohibits or requires company approval for employees to use the company logo
or trademarks, or post copyrighted information in documents containing its name, trademark, or
logo, on any personal blogs or other online sites.10
5. Requires company permission to post on personal blogs photos of company
events, coworkers or company representatives engaged in company business, or company
products.
15
6. Discourages employees from linking to the Company’s external website from
personal blogs.
c. Maintaining an overbroad rule in the handbook on “Reporting Violations” since the
same date that solicits employees to report any of the above prohibited blogging activities to the 20
Company.
d. Maintaining an overbroad rule in the handbook on “Guidelines to Appropriate
Conduct” since the same date that prohibits “any act” that “prevents an associate’s enjoyment of
work,” including “conduct that creates a disturbance in the workplace.”25
e. Maintaining an overbroad rule in the handbook on “No Solicitation, No
Distribution” since the same date that bans soliciting or distributing in customer or public areas at
any time.
30
f. Offering a “Separation Agreement and Release and Waiver” to an employee on
April 6, 2015 that prohibited disclosing “confidential information,” including any “personnel or
corporate information,” and making remarks or taking actions that are disparaging or detrimental
to the Company, following termination of employment.
35
4. The Company engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act by discharging Thomas
Wallace on April 6, 2015 because of his protected concerted and union activities and to
discourage employees from engaging in such activities.
40
5. The Company engaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act by disciplining Mario
Lerma on May 5, 2015 because of his protected union activities and to discourage employees
from engaging in such activities.
45
6. The Company did not otherwise violate the Act as alleged in the complaint.
JD(SF)–05–16
62
REMEDY
The appropriate remedy for the foregoing violations is an order requiring the Company to
cease and desist and to take certain affirmative action. Specifically, in the event Wallace has not
already been reinstated, the Company will be required to offer him immediate and full 5
reinstatement to his former position.88 In addition, the Company will be required to make him
whole for any loss of earnings and other benefits as a result of his unlawful termination.
Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest computed and compounded daily as prescribed in New Horizons, 283 NLRB 1173
(1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). 10
As set forth in Tortillas Don Chavas, 361 NLRB No. 10 (2014), the Company will also be
required to compensate Wallace for the adverse tax consequences, if any, of receiving a lump-
sum backpay award, and to file a report with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters.89 15
In addition, the Company will be required to remove from its files any reference to the
unlawful termination of Wallace and discipline of Lerma, and to notify them in writing that this
has been done and that the termination or discipline will not be used against them in any way.
20
The Company will also be required to rescind, in writing, the discriminatory and
overbroad rule it orally promulgated at the May 5 meeting with Lerma, the discriminatory and
overbroad rule set forth in its May 8 letter to all employees, and the overbroad separation
agreement it offered to Wallace on April 6. The Company will likewise be required to rescind
the overbroad handbook rules, and furnish all current employees with inserts for their current 25
employee handbooks that (1) advise that the unlawful rule has been rescinded, or (2) provide a
lawfully worded rule on adhesive backing that will cover the unlawful rule; or publish and
distribute to all current employees revised employee handbooks that (1) do not contain the
unlawful rule, or (2) provide a lawfully worded rule.
30
In addition, the Company will be required to post a notice to employees, in both English
and Spanish, stating that it will not continue to engage in the same or any like or related unlawful
conduct and that it will affirmatively remedy its unlawful conduct as ordered.
Given the severity and scope of the Company’s unfair labor practices, and the fact that 35
many of them were committed by high-level officials and/or at large and small mandatory
meetings, the notice must also be read aloud to the employees. Specifically, President/CEO Kent
McClelland or Operations VP Engdahl, or, if the Company chooses, a Board agent in their

88 See, e.g., Kellogg Company, 362 NLRB No. 86, slip op. at 8 (2015). On February 1, 2016,
the U.S. District Court in Arizona (Humetewa, J.) granted the General Counsel’s request for a
temporary injunction under Section 10(j) of the Act requiring the Company to offer Wallace
reinstatement pending a final decision by the Board. Overstreet v. Shamrock Foods Co., CV-15-
01785-PHX-DJH.
89 The General Counsel also requests search-for-work expenses, i.e. that the Company be
required to reimburse Wallace for all expenses he incurred searching for interim work. This
remedy is denied as it would involve a change in Board law. See Katch Kan USA LLC, 362
NLRB No. 162, slip op. at 1 n. 2 (2015).
JD(SF)–05–16
63
presence, must read the remedial notice aloud to all warehouse employees at one or more
mandatory meetings scheduled during working time to ensure the widest possible attendance. A
Spanish-language interpreter must be present as well to translate the reading for employees who
are not fluent in both English and Spanish. See OS Transport LLC, 358 NLRB 1048, 1049
(2012), reaffd. 362 NLRB No. 34 (2015); and Homer D. Bronson, 349 NLRB at 515, and cases 5
cited there.
According, based on the above findings of fact and conclusions of law and on the entire
record, I issue the following recommended90
10
ORDER
The Respondent, Shamrock Foods Company, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall
15
1. Cease and desist from
(a) Discharging or disciplining employees because of their protected concerted or
union activities and to discourage employees from engaging in such activities.
20
(b) Threatening employees that they would lose benefits if they supported a union.
(c) Soliciting employees’ complaints and grievances and promising to remedy them if
employees refrained from supporting a union.
25
(d) Promising or granting benefits to employees by committing that they would not be
laid off to discourage support for a union.
(e) Granting wage increases to employees to discourage support for the union.
30
(f) Telling employees to report to management if union supporters solicited them to
sign a union card.
(g) Threatening employees with unspecified reprisals if they support a union.
35
(h) Informing employees that it would be futile for them to support a union.
(i) Interrogating employees about whether they support a union.
(j) Surveilling employees’ union activities.40
(k) Creating the impression of surveilling employees’ union activities.
(l) Taking union flyers away from employees.

90 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–05–16
64
(m) Promulgating discriminatory or overbroad rules, either orally or in writing, that
restrict employees’ right to engaged in protected union activities.
(n) Requesting employees to report to management if the discriminatory or overbroad
rules are violated.5
(o) Threatening employees with discharge or other unspecified reprisals, and to refer
the matter to law enforcement for prosecution, if they violate the discriminatory or overbroad
rules.
10
(p) Maintaining overbroad rules in the Associate Handbook that prohibit, restrict, or
discourage employees from engaging in protected union and other concerted activities.
(q) Offering a “Separation Agreement and Release and Waiver” to employees that
includes provisions prohibiting employees from engaging in protected union and other concerted 15
activities following termination of employment.
(r) In any like or related manner interfering with, restraining, or coercing employees
in the exercise of the rights guaranteed them by Section 7 of the Act.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer Thomas Wallace full
reinstatement to his former job or, if that job no longer exists, to substantially equivalent
positions, without prejudice to his seniority or any other rights or privileges previously enjoyed.25
(b) Make Wallace whole for any loss of earnings and other benefits suffered as a
result of the discrimination against him, in the manner set forth in the remedy section of the
decision.
30
(c) Compensate Wallace for any adverse tax consequences of receiving a lump-sum
backpay award, and file a report with the Social Security Administration allocating the backpay
awards to the appropriate calendar quarters.
(d) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated by the Board 35
or its agents, all payroll records, social security payment records, timecards, personnel records
and reports, and all other records, including an electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(e) Within 14 days from the date of the Board’s Order, remove from the Company’s 40
files any reference to the unlawful April 6, 2015 termination of Wallace, and within 3 days
thereafter notify him in writing that this has been done and that the termination will not be used
against him in any way.
(f) Within 14 days from the date of the Board’s Order, remove from the Company’s 45
files any reference to the unlawful May 5, 2015 discipline of Mario Lerma, and within 3 days
JD(SF)–05–16
65
thereafter notify him in writing that this has been done and that the discipline will not be used
against him in any way.
(g) Within 14 days of the Board’s Order, rescind, in writing, the discriminatory and
overbroad rule it orally promulgated at the May 5 meeting with Lerma that prohibited union 5
supporters from “heckling” or “insulting” employees or soliciting in a manner “where somebody
could perceive it as intimidation” or “feel threatened or intimidated.”
(h) Within 14 days of the Board’s Order, rescind, in writing, the discriminatory and
overbroad rule set forth in the May 8 letter to all employees that prohibited union supporters from 10
engaging in “unlawful bullying” or “unlawfully coercive behavior.”
(i) Within 14 days of the Board’s Order, rescind, in writing, the “Separation
Agreement and Release and Waiver” that prohibits employees from disclosing “confidential
information,” including any “personnel or corporate information,” and making remarks or taking 15
actions that are disparaging or detrimental to the Company, following termination of
employment.
(j) Within 14 days of the Board’s Order, rescind its overbroad handbook rule on
“Protecting the Company’s Confidential Information” that designates as confidential any 20
“information, knowledge, or data” concerning “associates,” “Company manuals and policies,”
and “compensation schedules.”
(k) Within 14 days of the Board’s Order, rescind its overbroad handbook rule on
“Blogging” that: (1) discourages employees from publicly discussing on the internet “any work-25
related matters, whether confidential or not”; (2) requires employees to “protect” their
coworkers’ “home addresses” and “other personal information,” and the confidentiality of
accessible company “financial information” and “nonpublic information”; prohibits employees
from using blogs to “malign” or “disparage” coworkers or managers; (4) prohibits or requires
company approval for employees to use the company logo or trademarks, or post copyrighted30
information in documents containing its name, trademark, or logo, on any personal blogs or other
online sites; (5) requires company permission to post on personal blogs photos of company
events, coworkers or company representatives engaged in company business, or company
products; and (6) discourages employees from linking to the Company’s external website from
personal blogs.35
(l) Within 14 days of the Board’s Order, rescind its overbroad handbook rule on
“Reporting Violations” that solicits employees to report any of the above prohibited blogging
activities to the Company.
40
(m) Within 14 days of the Board’s Order, rescind its overbroad handbook rule on
“Guidelines to Appropriate Conduct” that prohibits “any act” that “prevents an associate’s
enjoyment of work,” including “conduct that creates a disturbance in the workplace.”
(n) Within 14 days of the Board’s Order, rescind its overbroad handbook rule on “No 45
Solicitation, No Distribution” that bans soliciting or distributing in customer or public areas at
any time.
JD(SF)–05–16
66
(o) Furnish all current employees with inserts for their current employee handbooks
that (1) advise that the above unlawful rules have been rescinded, or (2) provide lawfully worded
rules on adhesive backing that will cover the unlawful rules; or publish and distribute to all
current employees revised employee handbooks that (1) do not contain the unlawful rules, or (2)
provide lawfully worded rules.5
(p) Within 14 days after service by the Region, post at its warehouse in Phoenix,
Arizona copies of the attached notice marked “Appendix”91 in both English and Spanish. Copies
of the notice, on forms provided by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by the Respondent and maintained 10
for 60 consecutive days in conspicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper notices, the notices shall be
distributed electronically, such as by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates with its employees by such
means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not 15
altered, defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the Respondent at any time since
October 15, 2014.20
(q) Within 14 days after service by the Region, hold a meeting or meetings, scheduled
to ensure the widest possible attendance, at which the attached notice is to be read to the
warehouse employees by the Respondent's President/CEO Kent McClelland or Operations Vice
President Mark Engdahl, or, if the Company chooses, a Board agent in their presence, with 25
translation available for Spanish-speaking employees.
(r) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.30
Dated, Washington, D.C., February 11, 2016
35

91 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge, discipline or otherwise discriminate against any of you for
supporting Bakery, Confectionary, Tobacco Workers’ and Grain Millers International Union,
Local Union No. 232, AFL-CIO-CLC, or any other union.
WE WILL NOT threaten you with loss of benefits if you support a union.
WE WILL NOT solicit your complaints and grievances and promise to remedy them if you
refrain from supporting a union.
WE WILL NOT promise or grant benefits to discourage you from supporting a union.
WE WILL NOT grant wage increases to discourage you from supporting a union.
WE WILL NOT ask or tell you to report if union supporters solicit you to sign a union card.
WE WILL NOT threaten you with unspecified reprisals if you support a union.
WE WILL NOT inform you that it would be futile for you to support a union.
WE WILL NOT coercively question you about your union support or activities.
WE WILL NOT watch or monitor you in order to find out about your union activities, or create
the impression that we are doing so.
WE WILL NOT take union flyers away from you.
WE WILL NOT impose discriminatory or overbroad rules, either orally or in writing, that
restrict your right to engage in protected union activities, request that you report if such rules are
violated, or threaten to discharge or take unspecified reprisals against you, or to refer the matter
to law enforcement for prosecution, if you violate the rules.
WE WILL NOT maintain overbroad rules in the Associate Handbook that prohibit, restrict, or
discourage you from engaging in protected union and other concerted activities.
WE WILL NOT offer you a “Separation Agreement and Release and Waiver” that prohibits you
from engaging in protected union and other concerted activities following termination of your
employment.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
National Labor Relations Act.
WE WILL, within 14 days from the Board’s Order, offer Thomas Wallace full reinstatement to
his former job or, if that job no longer exists, to a substantially equivalent position, without
prejudice to his seniority or any other rights or privileges previously enjoyed.
WE WILL make Wallace whole for any loss of earnings and other benefits resulting from his
unlawful discharge, less any net interim earnings, plus interest compounded daily.
WE WILL compensate Wallace for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1 year.
WE WILL file a report with the Social Security Administration allocating Wallace’s backpay to
the appropriate calendar quarters.
WE WILL, within 14 days from the Board’s Order, remove from our files any reference to the
unlawful April 6, 2015 discharge of Wallace, and WE WILL, within 3 days thereafter, notify
him in writing that this has been done and that the discharge will not be used against him in any
way.
WE WILL, within 14 days from the Board’s Order, remove from our files any reference to the
unlawful May 5, 2015 discipline of Mario Lerma, and WE WILL, within 3 days thereafter,
notify him in writing that this has been done and that the discipline will not be used against him
in any way.
WE WILL, within 14 days from the Board’s Order, rescind the “Separation Agreement and
Release and Waiver” we offered to Wallace that prohibits disclosing “confidential information,”
including any “personnel or corporate information,” and making remarks or taking actions that
are disparaging or detrimental to the Company, following termination of employment.
WE WILL, within 14 days from the Board’s Order, rescind, in writing, the discriminatory and
overbroad rule we orally promulgated at our May 5 meeting with Lerma that prohibited union
supporters from “heckling” or “insulting” employees or soliciting in a manner “where somebody
could perceive it as intimidation” or “feel threatened or intimidated.”
WE WILL, within 14 days from the Board’s Order, rescind, in writing, the discriminatory and
overbroad rule set forth in our May 8 letter to all employees that prohibited union supporters
from engaging in “unlawful bullying” or “unlawfully coercive behavior.”
WE WILL, within 14 days from the Board’s Order, rescind the overbroad handbook rule on
“Protecting the Company’s Confidential Information” that designates as confidential any
“information, knowledge, or data” concerning “associates,” “Company manuals and policies,”
and “compensation schedules.”
WE WILL, within 14 days from the Board’s Order, rescind the overbroad handbook rule on
“Blogging” that: (1) discourages you from publicly discussing on the internet “any work-related
matters, whether confidential or not”; (2) requires you to “protect” your coworkers’ “home
addresses” and “other personal information,” and the confidentiality of accessible company
“financial information” and “nonpublic information”; prohibits you from using blogs to “malign”
or “disparage” coworkers or managers; (4) prohibits or requires company approval for you to use
the company logo or trademarks, or post copyrighted information in documents containing the
company name, trademark, or logo, on any personal blogs or other online sites; (5) requires
company permission for you to post on personal blogs photos of company events, coworkers or
company representatives engaged in company business, or company products; and (6)
discourages you from linking to the Company’s external website from personal blogs.
WE WILL, within 14 days from the Board’s Order, rescind the overbroad handbook rule on
“Reporting Violations” that solicits you to report any of the above prohibited blogging activities
to the Company.
WE WILL, within 14 days from the Board’s Order, rescind the overbroad handbook rule on
“Guidelines to Appropriate Conduct” that prohibits you from engaging in “any act” that
“prevents an associate’s enjoyment of work,” including “conduct that creates a disturbance in the
workplace.”
WE WILL, within 14 days from the Board’s Order, rescind the overbroad handbook rule on “No
Solicitation, No Distribution” that prohibits you from soliciting or distributing in customer or
public areas at any time.
WE WILL furnish you with inserts for your current associate handbooks that (1) advise that the
above unlawful rules have been rescinded, or (2) provide lawfully worded rules on adhesive
backing that will cover the unlawful rules; or publish and distribute to you revised associate
handbooks that (1) do not contain the unlawful rules, or (2) provide lawfully worded rules.
SHAMROCK FOODS COMPANY
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800, Phoenix, AZ 85004-3099
(602) 640-2160, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28-CA-150157 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (602) 640-2146.