Shamrock Foods Company

National Labor Relations Board - Administrative Judge Opinions

Apr 25, 2017

28-CA-177035 (N.L.R.B. Apr. 25, 2017)

JD–(SF)-18-17
Phoenix, Arizona
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SHAMROCK FOODS COMPANY
and Cases 28-CA-177035
28-CA-178621
28-CA-181714
28-CA-182541
BAKERY, CONFECTIONERY, TOBACCO
WORKERS’ AND GRAIN MILLERS
INTERNATIONAL UNION, LOCAL
UNION NO. 232, AFL-CIO-CLC
Sara Demirok, Esq.,
for the General Counsel.
Todd A. Dawson, Esq.,
Nancy Inesta, Esq.,
Baker & Hostetler, LLP,
for the Respondent.
David Rosenfeld, Esq.,
Weinberg, Roger & Rosenfeld,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was tried in Phoenix, Arizona, on
February 7–9, 2017. The Bakery, Confectionery, Tobacco Workers’ and Grain Millers
International Union (Charging Party or Union) filed charges and amended charges on May 26,
June 17, September 30, August 8, August 22, and October 27, 2016.1 The General Counsel
issued the consolidated complaint on October 28. Shamrock Foods Company (the Respondent or
Shamrock) filed a timely answer denying all material allegations.
The complaint alleges the Respondent violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by: granting employees benefits; blaming the Union for preventing
changes to wages, benefits, and other working conditions; promising improvements in its
disciplinary policy if its employees refrained from continued organizational efforts; blaming the
Union and employees’ union activities for stricter enforcement of rules and withdrawal of
benefits; threatening employees with stricter enforcement of rules and withdrawal of benefits;
and promulgating and maintaining an overly-broad rule prohibiting cell phones on the warehouse

1 All dates are in 2016 unless otherwise indicated.
JD–(SF)-18-17
2
floor. The complaint further alleges the Respondent violated Section 8(a)(3) and (1) of the Act
by: soliciting employee Thomas Wallace (Wallace) to sign an agreement not to return to work in
exchange for $214,270.30; and ceasing its practice of permitting employee D’Juan Williams
(Williams) to leave work early on certain days.
5
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the General Counsel, the Respondent, and the Charging
Party, I make the following
FINDINGS OF FACT10
I. JURISDICTION
The Respondent, an Arizona corporation with an office and place of business in
Phoenix, Arizona, is engaged in the wholesale distribution of food products. The Respondent 15
admits, and I find, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES20
A. CEO’s Failure to Appear to Testify
Before turning to the substance of the complaint, I will address the refusal of
President/CEO Kent McClelland to testify at the hearing, despite being served with a valid 25
subpoena. The Respondent’s petition to revoke this subpoena was denied on January 17, 2017.
The General Counsel argues that adverse inferences are warranted. I agree. See Rogan Bros.
Sanitation, Inc., 362 NLRB No. 61, slip op. at 3 n. 9 (2015); Carpenters Local 405, 328 NLRB
788 fn. 2 (1999).
30
The Respondent argues an adverse inference would be improper “in light of General
Counsel’s failure to demonstrate that McClelland possessed relevant knowledge or that his
absence prevented General Counsel from eliciting evidence regarding a material matter.” The
Respondent first points to Corliss Resources, 362 NLRB No. 21 at fn. 56 (2015), where the
administrative law judge, noting that the General Counsel did not contend an adverse inference 35
should be drawn, declined to do so sua sponte. The General Counsel did not file exceptions in
Corliss Resources, and the Board (to no surprise) did not pass on the matter. Reliance on this
case is therefore misplaced.
Next, the Respondent cites to Riverdale Nursing Home, 317 NLRB 881, 882 (1995), for 40
the premise that it is improper for a judge to rely on adverse inference to fill an evidentiary gap
in General Counsel’s case. I do not read the case to stand for such a broad proposition. The
Board in Riverdale pointed out that the “adverse inference drawn by the judge constitutes
virtually the General Counsel’s entire case regarding the Respondents’ joint employer status.” In
the instant case, an adverse inference will not comprise the General Counsel’s case almost 45
entirely. It is also worth pointing out that the adverse inference in Riverdale involved a
subpoena duces tecum that the General Counsel did not seek to enforce, and the Respondent’s
JD–(SF)-18-17
3
failure to call one of its own witnesses to rebut what little testimony the General Counsel
adduced in its case in chief. It did not, as here, involve a witness’s decision to flout a subpoena
and refuse to testify.
The Respondent further cites to Denny’s Transmission Service, 363 NLRB No. 1905
(2016), where the administrative law judge declined to draw adverse inferences based on the
company’s failure to call a witness who was no longer in its employ. The General Counsel did
not file exceptions in Denny’s, so, as in Corliss Resources, the Board did not pass on the matter.
In any event, a respondent’s decision not to call a witness in support of its own defense is a far
cry from a witness refusing to comply with a subpoena. This is particularly true where, as the 10
judge in Denny’s noted, the evidence showed the witness would not necessarily be inclined to
testify in the company’s favor.
Finally, the Respondent cites to M-B Co., Inc., 290 NLRB 68, 68 fn. 2 (1988), where the
Board agreed with the judge that the company’s decision not to call certain non-supervisory 15
individuals to testify in aid of its defense did not give rise to an adverse inference. I will not
belabor contrasting the scenario in M-B Co. with the situation present here, i.e., the CEO refusing
to appear pursuant to the General Counsel’s subpoena following the Respondent’s failed attempt
revoke it.
20
Simply put, Kent McClelland chose to disregard his obligation to testify pursuant to the
subpoena issued to him at his own peril. To permit the Respondent to escape the consequences
of its highest level official flouting a valid subpoena would severely undermine the Act and the
Board processes derived from it. Accordingly, I find sanctions are very clearly warranted.
Specific adverse inferences are detailed in context below.225
B. Background and the Respondent’s Operations
Shamrock Foods operates food distribution warehouses in several states. The instant case 30
concerns the warehouse in Phoenix, Arizona. Approximately 280 employees work within the

2 The Respondent did not rely on NLRB v. International Medication Systems, 640 F.2d 1110, 1116
(9th Cir. 1981), cert. denied 455 U.S. 1017 (1982), as authority for the principle that I may make no
adverse inference. Even if International Medication may be read to support the proposition that adverse
inferences may not be made when a witness refuses to appear pursuant to a valid subpoena, it is contrary
to Board law. See cases cited above, as well as Lemay Caring Center, 280 NLRB 60 fn. 2 (1986);
Today’s Man, 263 NLRB 332 (1982); and to at least three other circuits. Hedison Mfg. Co., 643 F.2d 32,
34 (1st Cir. 1981); NLRB v. C. H. Sprague & Son Co., 428 F.2d 938, 942 (1st Cir. 1970); NLRB v.
American Arts Industries, 415 F.2d 1223, 1230 (5th Cir. 1969), cert. denied 397 U.S. 990 (1970); Auto
Workers v. NLRB, 459 F.2d 1329 (D.C. Cir. 1972). In Atlantic Richfield Co. v. U.S. Dept. of Energy, 769
F.2d 771 (D.C.Cir. 1984), the D.C. Circuit squarely rebuked the Ninth Circuit’s reasoning in
International Medication Systems. It is clear administrative law judges lack the authority to compel a
witness’s appearance at an administrative hearing. The upshot of a holding that witnesses may simply
refuse to testify and await subpoena enforcement in Federal court with no interim consequences, however,
would be to reward employer and union respondents who encourage their witnesses to simply ignore
subpoenas, resulting in delay of hearings and a flood of enforcement proceedings in the Federal courts.
Such a construction of International Medication would severely undermine the Act.
JD–(SF)-18-17
4
Phoenix warehouse. Warehouse employees include receivers, forklift operators, order selectors
(sometimes referred to as “pickers”), and loaders. The number of warehouse employees from
December 2010–December 2013 was as follows: 232 employees in 2010, 251 in 2011, 311 in
2012, 300 in 2013, 358 in 2014, and 360 in 2015. (R Exh. 13.)3
5
About 250 drivers transport items to and from the warehouse. The drivers are part of the
Respondent’s transportation department, which is separate from the warehouse.
During the relevant time period, Kent McClelland (McClelland) served as Shamrock’s
president and chief executive officer (CEO). Mark Engdahl (Engdahl), who reported directly to 10
McClelland, served as vice-president of operations for food service, overseeing the warehouse
and transportation employees at the Phoenix warehouse. Tim O’Meara, the operations manager,
reported directly to Engdahl. Ivan Vaivao, the warehouse manager, reported directly to
O’Meara. Vaivao oversaw other managers, who in turn oversaw supervisors in the warehouse.
15
Robert Beake (Beake) served as senior vice president human resources (HR).4 Heather
Vines-Bright (Vines-Bright), an HR manager, reported to Beake.
C. Union Organizing Activity
20
Warehouse employees began organizing efforts with the Union in late 2014. Steven
Phipps, who worked as a loader and forklift driver for Shamrock for 19 years, was the main
employee organizer.5 (Tr. 416.) He first contacted the Union in November 2014. Phipps
created flyers on the Union’s behalf, and distributed them at the warehouse with a group of 5–7
other employees during October–December 2015. (GC Exh. 22; Tr. 417–419.) 25
By early 2015, Respondent was aware some of its employees were in contact with the
Union. Between January and May 2015, Engdahl held meetings with employees to educate them
about unions. (Tr. 63–64.) By the end of February, the Union had collected authorization cards
from approximately 90 employees. By the end August 2015, the Union had collected 30
authorization cards from a total 107 employees. (Tr. 447–449.)
D. The Holiday Banquet
Complaint paragraphs 5(a) and 7 allege the Respondent violated Section 8(a)(1) of the 35
Act when it granted its employees benefits by raffling off and presenting prizes to them at a

3 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for the
Respondent’s exhibit; “GC Exh.” for the General Counsel’s exhibit; “ “GC Br.” for the General Counsel’s
brief; and “R Br.” for the Respondent’s brief. Although I have included several citations to the record to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are based not
solely on the evidence specifically cited but rather are based my review and consideration of the entire
record.
4 At the time of the hearing, Beake had retired from the senior vice president human resources
position and transferred his responsibilities to Vince Daniels. He still worked for Shamrock on special
projects and in an advisory role for McClelland and his father, Board Chairman Norm McClelland. (Tr.
83.)
5 Phipps was discharged in June 2016 for safety violations. (Tr. 435.)
JD–(SF)-18-17
5
holiday banquet on December 19, 2015. At the hearing, I granted the General Counsel’s motion
to amend the complaint to include a related allegation that the Respondent paid for employees’
time to attend the holiday banquet. (Tr. 198.)
1. Facts5
Shamrock hosts various events for employees, including an annual holiday banquet.6
Prior to 2015, the holiday banquet for the warehouse workers typically was held at the
warehouse auditorium during the employees’ lunch break.7 For at least the past couple of years
it consisted of a meal, speeches, awards for perfect safety and attendance (PSA awards), and a 10
raffle.8 (R Exhs. 4–7.) The holiday banquet was held offsite at a resort hotel in 2007 and 2008,
but did not include a raffle. (Tr. 278.) In recent years, the warehouse banquets have lasted about
an hour, and employees have been paid for any time exceeding their 30-minute lunch break. (Tr.
271, 278.) The shift is extended in proportion time spent at the banquet beyond the employees’
lunch break. (Tr. 54.) The transportation employees historically attended a separate holiday 15
banquet, usually held offsite.
On December 19, 2015, Shamrock held its annual holiday banquet at the Talking Stick
Resort and Casino. All food operations employees, including warehouse, transportation, and
other departments, were invited to attend and were permitted to bring a guest. (GC Exh. 17.) 20
Attendees were provided with drink tickets. (Tr. 38, 263.) McClelland, O’Mara, and Vaivao all
attended. Registration and check-in began at 4:30 p.m., followed by a reception, remarks from
Board Chairman Norman McClelland, dinner, dancing, awards, and raffle prizes. The banquet
ended at 9:00 p.m. (GC Exh. 2.) Employees were paid for four hours of their time to attend the
banquet. (Tr. 262, 553.) 25
Raffle items at the 2015 holiday banquet ranged in value from $45 gift cards at the lowest
end to a $5,000 travel certificate at the highest. The other raffle prizes were: two laptop
computers valued at $499.99 each; four iPad Air tablets valued at $499 each; an Xbox valued at
$499.99; two PlayStations valued at $429.99 and $399.99; two 55-inch flat screen TVs valued at 30
$479.99 each; a 60-inch flat-screen TV valued at $699.99, and another donated 60-inch TV; two
drones valued at $199.99 each; ten $100 gift cards; four Bose speakers valued at $119 each; two
Insignia Soundbar speakers valued at $99.99 each; four Beats speakers valued at $112.49 each;
and three GoPro cameras valued at $299.99 each. The prizes, along with the winning raffle
ticket numbers, were displayed as part of a PowerPoint presentation. (GC Exh. 4.) The total 35
cost for the raffle prizes was $14,848.72. (GC Exhs. 3–5.) The cost of the banquet, not including
the prizes, was $144,511.90. (Tr. 57; GC Exh. 6.)
Thomas Richardson has worked in the warehouse at Shamrock since 2007. He attended
the holiday banquet in 2014 in the warehouse auditorium. A raffle was held following awards 40
for perfect safety and attendance (PSA) other employee achievement awards. (R Exh. 6.) Prizes

6 Testimony about various events was elicited but is not material, as this decision focuses on the
annual holiday banquet.
7 There was generally one banquet for the day shift and another for the night shift. (Tr. 549.)
8 The raffle in 2012 was among employees who had perfect safety and attendance. (R Exh. 4.) In
2013 and 2014, the employee awards and the raffle were separate, though both include prizes. (R Exhs.
5–6.) There is no allegation involving the employee awards.
JD–(SF)-18-17
6
for the raffle included smaller ticket items such as basketballs, footballs, volleyballs, tool sets,
chairs, griddles, and other small kitchen appliances. The larger ticket items consisted of: four
laptops, with two valued at $279.99 each and two valued at $249 each; four Kindle Fires valued
at $99.99 each; and four Galaxy tablets valued at $139.99 each. The grand prize was an iPad
Air, valued at $319.99. Two of these were awarded—one for the day shift and one for the night 5
shift.9 The cost for the prizes was $4,704.03.10 (Tr. 268; R Exh. 11.)
Vaivao recalled the raffle prizes in years prior to 2015 included big ticket items like big
screen televisions, laptops, iPads, and Kindles, as well as small items such as footballs,
basketballs, and tool kits. (Tr. 561, 564–566; R Exh. 5.) Engdahl authorized expenses for the 10
events at all of Shamrock’s branches. He recalled Shamrock has given out different items, such
as trips, canoes, boats, and quads, but was not certain if these prizes were for warehouse
employees. (Tr. 53–54.) Warehouse employees D’Juan Williams. Michael Meraz, Steven
Phipps, as well as Richardson, remembered items such as footballs, basketballs, tickets to a
sporting event, and a television. No employee recalled seeing a boat or a $5,000 gift certificate 15
as a raffle item. (Tr. 269–270, 336–337, 402–403, 430–431.)
Vaivao was among the individuals who decided the location of the 2015 holiday banquet.
One of the reasons he gave for the decision to hold it offsite was the auditorium, which holds
about 180 people, was becoming too small to accommodate the warehouse employees. 20
Shamrock also wanted to combine day and night shifts and have one party for all of operations,
including transportation. (Tr. 548, 550–552.)
Shamrock accrues money in an employee appreciation account to budget for events,
including the holiday banquet. Employee appreciation events are included in one general ledger 25
expense line. (Tr. 620.) Budgeting is calculated using the fiscal year, starting October 1 and
ending September 30 annually. Departments are identified by number, with 701–703
representing the warehouse.11 (Tr. 624.)
Budgeting for the 2013 year-end event is reflected in the previous fiscal year, beginning 30
October 1, 2012, and ending September 30, 2013.12 On October 31, 2012, Shamrock accrued
$10,000 for the warehouse department for the employee recognition event. Shamrock accrued

9 Richardson’s recollection, at Tr. 268, is consistent with the receipt showing the highest priced item
in 2014 was an iPad Air. (R Exh. 11d.) I found Richardson to be a credible witness based on his open
and straightforward demeanor while testifying. As a current employee testifying against his own
pecuniary interest, his testimony, along with the testimony of other current employee witnesses, is
particularly reliable. Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug Mill, 131
NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation Co., 193 NLRB 47, 48 (1971); Federal
Stainless Sink Div. of Unarco Industries, 197 NLRB 489, 491 (1972).
10 The total cost does not differentiate between award prizes and raffle prizes, except for the $25 gift
cards awarded to the 58 employees who received PSA awards. (R Exh. 11a.)
11 The text of Respondent’s Exhibit 12 is very difficult to read. It is clear that many of the “0” entries
erroneously appear to be “8” on the copy in the record. This is most apparent from the entries depicting
year where, for example, the entry on the third line down for October 31, 2013, reads “10/31/2813”.
12 The year-end employee appreciation awards took place at the holiday banquet. There is no
evidence of a separate year-end employee awards event so the accruals labeled “year end associate
recognition accrual” and those labeled “year end banquet accrual” are apparently for the same event.
JD–(SF)-18-17
7
an additional $2,500 each of the months from March–July 2013. There are no records reflecting
what, if anything was accrued in November–December 2012, January–February 2013, or August
–September 2013.
For the 2014 year-end event, Shamrock accrued $10,000 in October 2013 for the 5
warehouse department. It accrued an additional $3,000 in each of the months from November
2013–February 2014, as well as $7,000 in each of the months from April–June 2014. Shamrock
accrued $5,362 in July 2014, and $22,500 in September 2014. (R Exh. 12.)
Turning to the 2015 year-end event, for the warehouse department, Shamrock accrued 10
$7,000 in each of the months from October–December 2014, and January 2015. On February
23, 2015, $7,000 was accrued but that same amount was credited back on February 28.13 On
March 24, 2015, $7,000 was accrued but that same amount was credited back on March 31. On
April 30, 2015, $7,000 was accrued and refunded the same day. Shamrock accrued $4,500 in
July 2015, and $10,000 in August 2015, broken down into two separate entries of $4,500 and 15
$5,500 respectively. It accrued an additional $17,155 in September 2015, broken down into
three separate entries. (R Exh. 12.)
2. Analysis
20
Under Section 8(a)(1) of the Act, it is an unfair labor practice for an employer to interfere
with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the
Act. The rights guaranteed in Section 7 include the right “to form, join or assist labor
organizations, to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or other mutual aid 25
or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether under all the circumstances the
employer’s conduct would reasonably tend to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury, 314 NLRB 470, 472, (1994); 30
Sunnyside Home Care Project, 308 NLRB 346 fn. 1 (1992), citing American Freightways Co.,
124 NLRB 146, 147(1959). Further, “It is well settled that the test of interference, restraint, and
coercion under Section 8(a)(1) of the Act does not turn on the employer’s motive or on whether
the coercion succeeded or failed.” American. Tissue Corp., 336 NLRB 435, 441 (2001) (citing
NLRB v. Illinois Tool Works, 153 F.2d 811, 814 (7th Cir. 1946)).35
The Supreme Court, in Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686 (1944),
stated that the “action of employees with respect to the choice of their bargaining agents may be
induced by favors bestowed by the employer as well as by his threats or domination.” As the
Court explained in NLRB v. Exchange Parts Co., 375 U.S. 405, 409 (1964): 40
The danger inherent 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.45

13 Amounts in parentheses are credits, not expenses. (Tr. 625.)
JD–(SF)-18-17
8
(fn. omitted.) The Court further stated that “the conferral of employee benefits while a
representation election is pending, for the purpose of inducing employees to vote against the
union,” interferes with the employees’ protected right to organize. It is well-settled that the
Exchange Parts principles apply to promises and/or granting of wage increases or other benefits5
if they are made in response to union organizational activity, regardless of whether a
representation petition has been filed. Network Dynamics, 351 NLRB 1423, 1424 (2007);
Hampton Inn NY-JFK Airport, 348 NLRB 16, 17 (2006).
Unlike most 8(a)(1) allegations, analysis of a claim that benefits were promised, 10
announced, or granted to coerce employees in their choice of bargaining representative is
motive-based. Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424 (2007). The granting of
benefits to employees during union organizational activity “is not per se unlawful” where the
employer can show that its actions were governed by other factors. American Sunroof Corp.,
248 NLRB 748, 748 (1980), modified on other grounds 667 F.2d 20 (6th Cir. 1981). 15
To establish such a claim, the General Counsel must first prove, 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.” Southgate Village Inc.,
319 NLRB 916 (1995). If the General Counsel meets this burden, the employer must 20
demonstrate a legitimate business reason for the timing of the benefit. One way to do this is to
show the benefit was “part of an already established Company policy and the employer did not
deviate from the policy upon the advent of the union.” American Sunroof, supra; see also Real
Foods Co., 350 NLRB 309, 310 (2007); Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd.
48 F.3d 1362 (4th Cir. 1995), affd. 517 U.S. 392 (1996); Jewish Home for the Elderly of 25
Fairfield County, 343 NLRB 1069, 1087–1090 (2004).
It is clear from the above-stated facts that the holiday banquet the warehouse employees
were invited to attend in December 2015 was a much more lavish event than the holiday
banquets dating back at least the past 7 years. In contrast to the holiday banquets held during 30
lunchtime at the warehouse from 2009–2014, the 2015 banquet was held at a casino, employees
were eligible to receive more expensive prizes, they were invited to bring a guest, drink tickets
were provided, and the event lasted longer than an hour.
The Respondent argues that the 2015 banquet was in line with past practice, and cites to 35
K-Mart Corp., 336 NLRB 455, 470–471 (2001), for support.14 In that case, however, there was
no quantification of the raffle prizes at the events at issue, as there is here. Moreover, the
Respondent cites to the administrative law judge’s decision, which the Board did not discuss on
appeal.15
40

14 The Respondent cites to the factors set forth in B&D Plastics, 302 NLRB 245 (1991), which apply
to pre-election cases. This is not such a case, but a more rigid application of the B&D factors would not
change my decision.
15 It appears the dismissal of this allegation was not the subject of exceptions, as the Board explicitly
ruled on the various other administrative law judge findings the parties had appealed.
JD–(SF)-18-17
9
The Respondent attempts to conflate the PSA and other employee awards with the raffle
awards. This argument is a red herring and it fails, as does the Respondent’s attempt to compare
the annual holiday banquet to other unrelated employee events. The Respondent also asserts that
the prizes were proportionate to the attendance, since the transportation department was also
included. The math simply does not add up, however, as calculated in the statement of facts 5
above. In addition, the decision to invite the warehouse employees to the type of offsite event
usually only offered to the transportation department is telling. The Respondent next points out
that the $5,000 travel voucher was a single award granted to a single employee. The voucher
and the various other prizes, however, were available for all employees to win. In any event, the
Respondent’s contentions regarding past practice are belied by the evidence, as detailed above. 10
The Respondent argues that the banquet was not coercive because the union campaign
was in abeyance by December 2015. In support, the Respondent relies on Sigo Corp., 146
NLRB 1484, 1485–1486 (1964). In Sigo, the union filed a petition for representation on June 5,
1963, but withdrew it on June 13. On June 17, the company announced a new insurance plan. 15
The Board found this was not unlawful because, at the time the benefit was offered, the union
had withdrawn its petition and the employer had no notice that the union intended to continue its
organizational activity or to file another petition. In the instant case, no petition had been filed or
withdrawn. There is nothing to suggest the level of finality to the organizing drive was
communicated to the Respondent as it was in Sigo. The Respondent contends, nonetheless, that 20
the Union’s organizing drive was essentially dead by May 2015. This is squarely contradicted
by the fact that Phipps and a group of employees distributed flyers and talked to employees in
the break room about the Union during October–December 2015. Also, in November 2015, a
group of employees picketed at the warehouse, holding signs that said, “Workers United to Bring
Tom Wallace Back.” (GC Exh. 23; Tr. 483.) In December 2015, employees distributed flyers 25
about the Respondent’s treatment of its workers. (GC Exh. 22; Tr. 418.)
It is also undisputed that the Union was pursuing charges against Shamrock around the
time of the annual holiday banquet. Employee Andres Contreras filed a charge against
Shamrock alleging unfair labor practices on October 13, 2015, and the Union filed unfair labor 30
practice charges on October 28 and December 11, 2015.16 Shamrock Foods, JD-49-16 (N.L.R.B.
Div. of Judges, June 10, 2016). On September 8, 2015, the General Counsel filed a petition for
injunction under Section 10(j) of the Act in the U.S. District Court for the District of Arizona. A
complaint alleging numerous unfair labor practices issued on July 21, 2015, and was amended in
August and September. A hearing regarding the complaint took place between September 8–16, 35
2015, overseen by Administrative Law Judge (ALJ) Jeffrey Wedekind. The management
officials who testified included McClelland, Engdahl, and Vaivao. The record was held open
after the hearing to allow for investigation of a new charge the Union had filed seeking a
remedial bargaining order.17 The Respondent submitted new documents into the record on
October 21, 2015. Shamrock Foods, JD (SF)-05-16 (N.L.R.B. Div. of Judges, February 11, 40
2016). On September 11, 2015, the Respondent filed a request for special permission to appeal
to the Board ALJ Wedekind’s order denying its petition to revoke a subpoena duces tecum. On
December 1, 2015, the Board denied this request. Shamrock Foods, 2015 WL 7769413 (2015).

16 The complaints stemming from these charges were dismissed on June 10, 2016.
17 This charge was subsequently withdrawn.
JD–(SF)-18-17
10
It is safe to say the Union’s pursuit of various unfair practice charges was in full force during the
time period leading up to the annual holiday banquet.
With regard to the pay, it is undisputed that employees were paid for four hours to attend
the 2015 banquet. In the past, employees were paid for the time beyond their 30-minute lunch 5
break to attend the banquet, which generally lasted about an hour. The Respondent points to
Vaivao’s testimony that off-duty employees were paid four hours to attend previous banquets.
His testimony on this point is confusing, however:
Q Were you one of the individuals that helped or participated in the decision that 10
they would be paid?
A [Vaivao] Yes.
Q And what did you consider in making that decision?
A Considering -- trying to standardize it. Transportation had been having their
events and they were getting paid. To my knowledge, what I've heard is to be consistent 15
with DOT rules but they were paid for attending. So for us to have this together as an
operation, we felt that it'd be consistent with what’s been going on. We – it’s consistent --
we paid the associates to attend years past with, you know, the extended time past their
half an hour lunch. So it’s consistent with what we’ve done.
Q Okay. So you didn't see it or did you see it as a departure from what you had done 20
in the past?
A No, not at all. If an associate would come in on their day off, we were paying the
four hours to attend.
Q Okay. So if an associate came into the luncheons, you would pay them for the
time they were there?25
A In the warehouse, yes.
(Tr. 554.) It is unclear whether off-duty warehouse associates were paid for four hours or were
paid for the time they came into the warehouse for the event, which lasted well short of four
hours. Vaivao further testified that not very many off-duty employees attended, describing it as, 30
“Couple here, couple there . . .” (Tr. 554–555.) In any event, the treatment of a couple of
employees is not the same as the enhanced benefit of four hours of pay to all employees to attend
the holiday banquet in 2015. Moreover, it is clear that paying warehouse employees four hours
for the holiday banquet was not established past practice. An email written by Rose Brancato, a
senior finance manager, notes that the added payroll expense for the warehouse employees to 35
attend the meeting was “outside of what was planned.” Tom Petrola, operations analyst
responded to Brancato’s email, stating that “the payroll bump is new to Warehouse this year . . .
” (GC Exh, 7.) The Respondent also contends that employees were paid to attend other events.
The issue before me, however, is the Respondent’s past practice with regard to the holiday
banquet.40
Based on the foregoing, I find the General Counsel established that the Respondent
conferred a benefit on the warehouse employees that would reasonably be viewed as an attempt
to coerce them in their choice of union representation.
45
The burden now shifts to the Respondent to demonstrate a legitimate business reason for
the timing of the benefit. The Respondent admits that the record does not reflect the precise date
JD–(SF)-18-17
11
the decision to hold the banquet off-site in the evening was made (R Br. 5, fn. 6), but argues it
must have been made by October 2014, since it began setting aside greater accruals that month
than it had previously. When directed to certain months reflected in the Respondent’s exhibit
showing accruals, Petrola testified that around $3,000 per month was accrued for the 2014
holiday banquet, while $7,000 per month was accrued for the 2015 holiday banquet. (Tr. 625–5
626). This testimony does not withstand scrutiny, however, as the record reflects that in October
2014, $7,000 was set aside for the banquet, while in both October 2012 and October 2013,
$10,000 was set aside.18 For the months February–April 2015, accruals were made and
rescinded, essentially resulting in no accruals for those months. By contrast, the Respondent
accrued $3,000 in February 2014, and 7,000 in each of the months from April–June 2014. The 10
accruals simply fail to establish when the decision was made to change the location and timing of
the banquet.19
The Respondent contends that there was not enough space in the warehouse auditorium
to continue to hold the holiday banquet on-site.20 There were two more employees in 2015 than 15
in 2014 when the banquet was held in the auditorium, and the employees who had the day off on
the day of the banquet usually did not attend. (R Exh. 13; Tr. 554–555.) This explanation,
therefore, is unpersuasive.21
In sum, I find the General Counsel has met its burden to prove the Respondent violated 20
Section 8(a)(1) by conferring benefits to dissuade employees from supporting the Union as
alleged.

18 For this reason, I do not credit Petrola’s testimony. I have fully reviewed the entire record and
carefully observed the demeanor of all the witnesses. I have considered the apparent interests of the
witnesses; the inherent probabilities in light of other events; corroboration or the lack of it; consistencies
or inconsistencies within the testimony of each witness, and between witnesses with similar apparent
interests. See, e.g., NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Testimony or other evidence in
contradiction to my factual findings has been carefully considered but discredited. Where there is
inconsistent evidence on a material point, my credibility findings are incorporated into my legal analysis.
19 Vaivao, who was involved in the decision about where to hold the banquet, was not asked about the
timing. The General Counsel has requested an adverse inference pursuant to Flexsteel Industries, 316,
NLRB 745, 758 (1995). I find such an inference is warranted, and conclude that Vaivao would have
testified that the decision was made after the Respondent became aware that employees had contacted the
Union. I likewise find McClelland would have so testified if he had complied with the subpoena and
appeared at the hearing. I further find McClelland would have testified that the reason Shamrock granted
the warehouse employees enhanced prize opportunities and paid time to attend the banquet was to
discourage their support for the Union. I note that my decision would be the same without these adverse
inferences.
20 The Respondent’s brief cites to Vaivao’s testimony at p. 549 for the proposition that the warehouse
party was broken down by shift due to space constraints. (R. Br. p. 4, citing Tr. 5439, lines 3–16.) The
cited testimony, however does not reference space constraints as the reason for holding one party for the
day shift and another for the night shift.
21 The Respondent did not argue in its brief that productivity was a factor in the decision to hold the
holiday banquet in the evening. Given Engdahl’s testimony that the banquet typically lasted about an
hour (of which 30 minutes was a lunch break) and the day was extended to make up for the time spent at
the banquet, such an argument would be unpersuasive without more specific evidence than appears in the
record.
JD–(SF)-18-17
12
E. Thomas Wallace Settlement Agreement
Complaint paragraphs 6(a),(b),(d), and 8 allege that on about February 11, 2016, the
Respondent solicited its employee Thomas Wallace to sign an agreement providing that, in
exchange for the payment to him in the gross amount of $214,270.30, he agree to a release and 5
waiver, in violation of Section 8(a)(3) and (1).
1. Facts
Thomas Wallace (Wallace), a former warehouse worker, was terminated on April 6, 10
2015.22 He was an outspoken Union supporter, and, in a previous decision, ALJ Wedekind
determined he was unlawfully terminated based on his union activities. Shamrock Foods Co., JD
(SF)-05-16, supra. On February 1, 2016, the U.S. District Court for the District of Arizona
ordered Shamrock to offer Wallace reinstatement. (GC Exh. 23.)
15
After his termination, but prior to the order reinstating him, Wallace remained active with
the Union. In November 2015, he and Phipps picketed, holding signs that said, “Workers United
to Bring Tom Wallace Back.” (GC Exh. 23; Tr. 483.) In December 2015, employees, including
Wallace, distributed flyers about the Respondent’s treatment of employees. (GC Exh. 22; Tr.
418.) Phipps also created a flyer about the order reinstating Wallace, and he and coworkers 20
distributed it at the warehouse on February 9–11. (GC Exh. 11; Tr. 420.) Phipps perceived that
many of his coworkers were excited about Wallace returning to work, but many were skeptical
that it would happen. (Tr. 424.)
At the time of his termination, Wallace’s hourly rate was $12/hour plus applicable 25
bonuses. On average he earned about $27/hour. (Tr. 512–513.)
On February 5, 2016, Beake sent Wallace a letter offering him reinstatement at his hourly
rate, or payment of $78,000 to waive reinstatement. (GC Exh. 9.) In the letter, Beake assured
Wallace that acceptance of the settlement was “purely voluntary” and that a decision to accept 30
reinstatement instead of a lump sum would not be held against him. Beake informed Wallace
that acceptance of the offer would not prevent the Board from seeking a remedial posting
referencing his termination. Beake also assured Wallace that his discharge would not be used
against him in any way. Wallace did not seriously consider this offer, and was focused on
returning to work. (Tr. 489.) 35
Beake’s letter instructed Wallace to call Vines-Bright by February 12 and let her know
whether he wanted to return to work. Wallace called Vines-Bright on February 8, and informed
her that he was ready to return to work.23 (Tr. 490–491.) Wallace asked some questions about
his schedule and chain of command. Vines-Bright said she would get back to him. (Tr. 214–40
215.) Vines-Bright called him back the following day to tell him his schedule would be the same

22 Wallace’s termination was adjudicated in a previous proceeding before ALJ Jeffrey Wedekind.
Judge Wedekind found that Wallace’s termination violated Sec. 8(a)(3) and (1) of the Act. See JD(SF)–
05–16, supra.
23 Though she did not recall specifics, Vines-Bright recalled that Wallace intended to return to work.
(Tr. 212.)
JD–(SF)-18-17
13
as it was before his termination. She offered an additional $100,000.24 (Tr. 492–493.) Vines-
Bright went on vacation, so Natalie Wright, a human resources specialist, followed up with
Wallace. She had been told that Shamrock did not want Wallace to return to work. (Tr. 231.)
Wallace told Wright he was declining Shamrock’s offer, and said it would take $350,000 plus
three years of medical coverage for him to agree not to return to work. (Tr. 232–235; 495–496.) 5
Wright expressed that this might be too high and asked if there was wiggle room. Wallace said
that Shamrock needed to come in strong, and mentioned that the warehouse was going to “go
bananas” because of all the union activity that had been taking place. (Tr. 496–497.)
On February 11, Wright orally conveyed an offer of $214.270.30 to Wallace, and sent 10
him a draft of the offer. (GC Exh. 16; Tr. 235.) The following day, February 12, Wallace signed
a settlement agreement waiving reinstatement in exchange for $214, 270.30. (GC Exh. 8.) The
agreement resolved a charge Wallace had made with the Equal Employment Opportunity
Commission (EEOC) alleging disability discrimination. (Tr. 524.) The agreement states, in
relevant part:15
In exchange for your decision to waive your right to return to work at Shamrock and the
release of claims explained below, you will receive a check in the gross amount of
$214,270.30, less FICA and Medicare tax deductions that are mandatory, despite your
exempt status designation on your W-4. 20
. . .
It is understood that, in exchange for your Settlement Payment set forth in this letter, you
release and waive the right to return to your former position with Shamrock.
25
. . .
You also waive any claimed right or opportunity to seek reemployment, reinstatement,
new employment, or an independent contractor relationship with Shamrock or any of
Shamrock’s parent, subsidiary or affiliated entities, at any location, now or ever in the 30
future, and agree that you will not apply for nor seek in any way to be reinstated,
reemployed, retained or hired by any of them in the future.
Nothing in this Agreement is intended to, or shall, interfere with your ability to file or
otherwise institute a charge with an administrative agency alleging discrimination under 35
federal, state, or local civil rights, labor and/or employment discrimination laws
(including, but not limited to, Title VII, the ADA, the NLRB, and the ADEA). However,
you waive any right, and you shall not be eligible, to any relief, remedies, recovery, or
monies in connection with any such charge against Shamrock, regardless of who filed or
initiated any such compliant, charge, or proceeding. 40
. . .

24 There are some conflicts with regard how and precisely when the various offers were conveyed, but
none of them are material. With regard to any conflicts between Wallace and Vines-Bright, I credit
Wallace because Vines-Bright admittedly had trouble recalling the conversations. (Tr. 215–217.)
JD–(SF)-18-17
14
You agree to reasonably cooperate with the Company in connection with any matter
which you were involved or any existing or potential claim, investigation, administrative
proceeding, lawsuit or other legal or business matter which arose during your
employment by the Company, as reasonably requested by the Company.
5
Wallace’s termination and subsequent failure to return to work impacted negatively on
the Union’s organizing efforts. In June 2016, only about 25 percent of the employees who had
initially signed cards re-signed them. (Tr. 425–428, 443–446, 451, 462–465.)
2. Analysis10
The parties disagree on the applicable legal framework. The General Counsel argues the
case should be analyzed under Wright Line, while the Respondent argues it should be analyzed
Independent Stave. There are problems with both approaches.
15
Independent Stave Co., 287 NLRB 740, 743 (1987), sets forth the relevant considerations
for approving non-Board settlements. The complaint allegation, coupled with the nature and
posture of the settlement agreement at issue, render Independent Stave inapplicable.25
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 20
U.S. 989 (1982), governs mixed-motive cases where discriminatory intent is alleged. To prove a
violation under Wright Line, the General Counsel must make an initial showing “sufficient to
support the inference that protected conduct was a ‘motivating factor’ in the employer's
decision.” 251 NLRB at 1089. If this is accomplished, the burden shifts to the employer “to
demonstrate that the same action would have taken place even in the absence of the protected 25
conduct.” Id. I agree with the Respondent that a typical motive-based analysis that considers the
legitimacy of an agreement settling pending legal claims clashes with Federal Rule of Evidence
408.
Federal Rule of Evidence 408 states:30
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party
— either to prove or disprove the validity or amount of a disputed claim or to impeach by
a prior inconsistent statement or a contradiction:
35
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to
accept — a valuable consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise negotiations about the claim —40
except when offered in a criminal case and when the negotiations related to a claim by a
public office in the exercise of its regulatory, investigative, or enforcement authority.

25 As noted by the General Counsel, the settlement agreement did not resolve any unfair labor practice
charges. The Board, therefore, was not in a position to approve or deny it prior to its execution. (GC Br.
53.)
JD–(SF)-18-17
15
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a
witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
“While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a 5
similar attitude must be taken with respect to completed compromises when offered against a
party thereto.” Advisory Committee’s Notes to the Federal Rules of Evidence, Notes on Rule
408 (1972).
The complaint allegation implicitly requires me to undertake an analysis of the validity of 10
the claims underlying the settlement.26 The General Counsel argues that the “Respondent took
action by repeatedly and successfully soliciting Wallace to enter into an agreement waiving his
right to reinstatement in exchange for a large sum of money.” This begs the question, what was
a reasonable sum of money?27 As the Respondent points out, the settlement resolved Wallace’s
EEOC disability discrimination claim.28 If Wallace successfully prevailed on this claim, he 15
would be entitled to compensatory damages for any out of pocket expenses and up to $300,000
for any emotional harm he could prove resulted from discrimination. If warranted, punitive
damages could be assessed. 42 U.S.C. § 1981a. Shamrock would also be required to pay
Wallace’s attorney fees. 42 U.S.C. § 12205. Without delving into the validity of claims
underlying the settlement, there is no way to know if the amount of money the Respondent 20
offered Wallace was reasonable.29
While it is abundantly clear the Respondent did not want Wallace to return to work at
Shamrock, this is always the case when an employer decides that it will settle a case in exchange
for an employee waiving reinstatement.30 An allegation of unlawful motivation, be it 25
discrimination based on disability or anti-union retaliation, underlies every agreement settling
such claims. For the Board to get involved in passing on the ultimate issue of motivation in a

26 The General Counsel here argues that the settlement agreement itself is unlawful, and that
statements made in the course of settlement discussions show coercion. This is different from cases
where the Board has stated that statements made during settlement negotiations may be used to establish
independent violations, such as threats, that occurred during the course of settlement. See Miami Systems
Corp., 320 NLRB 71 fn. 2 (1995), modified but affirmed on point, Uforma/Shelby Business Forms v.
NLRB, 111 F.3d 1284, 1293–1294 (6th Cir. 1997).
27 As held by the Court of Appeals for the Sixth Circuit, “Where, as here, a party has raised an issue
going to the validity or amount of a claim, that is insufficient for admitting settlement offers that go to the
same issue because to do so violates Rule 408 on its face.” Stockman v. Oak crest Dental Center, P.C.,
480 F.3d 791 (6th Cir. 2007).
28 The fact that the settlement resolved Wallace’s pending EEOC claims renders it distinct from cases
where the employer unilaterally offers incentives in exchange for an agreement not to pursue potential
claims. See Mundy v. Household Fin. Corp., 885 F.2d 542, 546 (9th Cir.1989); Cassino v. Reichhold
Chemicals, Inc., 817 F.2d 1338, 1343 (9th Cir.1987); Clark Distribution Systems, Inc. 336 NLRB 747
(2001).
29 As the Board stated in PAC Structural Inc., 330 NLRB 868, at fn. 14 (2000), “it is not the Board's
place to determine whether a disabled person actually had a viable ADA claim.”
30 To be clear, I am not deciding whether the terms of settlement agreement, including the waivers,
would hold up if challenged. I have serious doubts the Respondent could enforce the waiver of any relief
Wallace may be entitled to in connection with a charge with the EEOC or NLRB, or whether it could
enforce the provisions requiring cooperation with company, for example.
JD–(SF)-18-17
16
case that private parties have voluntarily settled implicates broader considerations in a manner
that conflicts with the purpose of Rule 408, i.e., “promotion of the public policy favoring the
compromise and settlement of disputes.”31 Advisory Committee Notes, supra; see also U.S. v.
Contra Costa County Water Dist., 678 F.2d 90 (9th Cir. 1982); Hughes Christensen Co., 317
NLRB 633, 635 (1995), enf. denied on other grounds 101 F.3d 28 (5th Cir., 1996).5

I recommend dismissal of complaint paragraph 6(a)(b), and (d).
F. Allegations Concerning Employee D’Juan Williams
10
The complaint contains some related allegations concerning employee D’Juan Williams.
Complaint paragraphs 5(c) and 7 allege that the Respondent violated Section 8(a)(1) when on
August 14, 2016, Armando Gutierrez: (1) blamed its employees’ union activities for its stricter
enforcement of work rules and withdrawal of benefits for its employees; and (2) threatened its
employees with stricter enforcement of work rules and withdrawal of benefits if they engaged in 15
union activities. Complaint paragraphs 5(e) and 7 alleged that on August 17, 2016, Gutierrez: (1)
blamed the Union’s organizing campaign and its filing of unfair labor practice charges for its
stricter enforcement of work rules and withdrawal of benefits for its employees;32 (2) blamed its
employees’ union activities for its stricter enforcement of work rules and withdrawal of benefits
for its employees; and (3) threatened its employees with stricter enforcement of work rules and 20
withdrawal of benefits for its employees if they engaged in union activities. Complaint
paragraphs 6(c),(d), and 8 allege that on about August 14, 2016, the Respondent ceased its
practice of allowing employee D’Juan Williams to leave work early on certain days in violation
of Section 8(a)(3) and (1).
25
1. Facts
At all relevant times, Armando Gutierrez has been the dayshift shipping or outbound
manager. Supervisors under Gutierrez’s direction schedule the loaders, and then Gutierrez
reviews the schedule before it is posted. Jake Myers is the shipping supervisor for the day shift. 30
Anthony Urias held the position prior to Myers.33
D’Juan Williams has worked for the Respondent since 2009. He was an order selector or
“picker” until October 2012, and has since worked a loader on the dayshift. He was moved into
the loader position because his quality as a picker was poor, but because he knew how to do both 35
positions, he would go back and forth as needed. (Tr. 592.)
In May or June 2015, Williams signed a union authorization card. (Tr. 288.) In
November or December 2015, he started attending union planning committee meetings and
asked coworkers to sign cards. (Tr. 289.) In April and May 2016, he and coworker Steve Ditto 40
began passing out union flyers in the break room by the operations manager’s office during

31 The evidence does not fraud, duress, or other actions that lead me to infer that Wallace signed the
agreement involuntarily.
32 There was no evidence or argument presented about Gutierrez blaming unfair labor practice
charges for the alleged violations. Accordingly, this portion of the complaint is dismissed.
33 At the time of the hearing, Urias was the meat plant supervisor.
JD–(SF)-18-17
17
lunch breaks and talking with employees who had questions about the Union. (Tr. 289–291; GC
Exh. 12.)
Loaders have fixed start times, but end times vary depending on workload. (Tr. 109.)
The goal is to have more than half of the cases loaded onto trucks for delivery during the next 5
shipping day, which technically begins at 10:00 p.m. the night before. The final case count is not
available until 5:30 p.m. (Tr. 355–356.)
Williams’ shift begins at either 9:45 or 10:00 a.m. and usually ends between 5:30 and
9:00 p.m. Beginning in October 2014, Williams received permission from Urias and Gutierrez 10
to leave early, usually between 4:30 and 4:45 p.m., on the third Wednesday of the month during
the school year to attend PTA meetings at his son’s school. He did not leave early in June or
July because school was not in session. Each month, Williams would remind his supervisor the
Sunday before the Wednesday he planned to leave early. (Tr. 284–287.) Time records show that
Williams left before 5:00 on the following third Wednesdays between October 2014 and May 15
2016: October 15, 2014, August 19, 2015, November 18, 2015, January 20, 2016, February 17,
2016, April 20, 2016, and May 18, 2016. He left shortly after 5:00 on September 16, 2015, and
October 21, 2015. Williams did not leave either before or shortly after 5:00 on August 17, 2016,
September 21, 2016, October 19, 2016, November 16, 2016, December 21, 2016, or January 18,
2017. (R Exh. 9.) 20
On Sunday, August 14, 2106, Williams reminded Gutierrez that he needed to leave early
the following Wednesday, and Gutierrez responded that he would not be able to. Williams asked
why, and Gutierrez said it was because of the flyers. (Tr. 295.) Gutierrez told Williams he
needed to be fair to everyone in the warehouse.34 (Tr. 116–118.) Williams requested a meeting 25
with Gutierrez and someone from human resources. Gutierrez did not check with anyone else in
management prior to telling Williams on August 14 that he could not leave early on August 17.
(Tr. 117.)
On August 15, Gutierrez emailed Daniel Santamaria from HR stating that Williams 30
wanted to meet with him. Santamaria responded that he was not in, and asked what Williams
needed. Gutierrez replied, “Last year he was leaving early one Wed a month for his kids school.
I told him that I couldn't do it this year because if I do it for him I would have to do it for
everyone else.” Santamaria emailed Gutierrez back stating, “Yes that was a good answer to give
him we can not (sic) do it for one and not others” and recommended a meeting between Williams 35
and Vines-Bright. (GC Exh. 10.)
On August 17, 2016, Williams asked Vines-Bright why he would not be able to leave
early on certain Wednesdays. Vines-Bright said she would look into it, and commented:
40
I mean I know that we . . . obviously you know about a lot of labor issues that have been
going on at the warehouse and stuff, all the labor relations stuff going on so, you know
obviously we have to make sure that we're treating everybody equally and fair and
consistent with everybody, so that may have something to do with it.

34 Gutierrez did not remember whether he told Williams the flyers had anything to do with the reason
he could not leave early. (Tr. 124.)
JD–(SF)-18-17
18
(GC Exh. 19.) After this discussion, Vines-Bright contacted Gutierrez, who told her the
warehouse was too busy to let Williams leave early.
Later on August 17, Williams attended a meeting with Vines-Bright, Vaivao, and 5
Gutierrez.35 Vines-Bright told Williams that management had explained to her why it was
difficult to let him leave early, and turned it over to Vaivao and Gutierrez for elaboration.
Williams stated, “Before you start, Armando was telling me something on Sunday about the
reason why. I want to hear the reason why, that you were telling me on Sunday.” Gutierrez said
that if he let Williams leave early, he would need to let the other employees leave early too. 10
Williams replied, “I understand that, but you were also saying something about a flyer, you had
mentioned a flyer.” Gutierrez responded, “Well, there were things that were posted and there
were things that were said, um, that I wasn't fair to everyone. So the only way to knock that noise
is just to make sure . . . .” At this point, Vines-Bright interrupted, stating, “Well, I mean, this
doesn't have anything to do with the flyer.” Williams then stated, “Well, this is what I'm saying, 15
that was mentioned, so that's . . . I'm trying to understand, why that was brought up.” Gutierrez
then said he was just trying to be fair across the board.
Vaivao then stated that they could not accommodate everyone because the caseload was
too high, noting that the workload had increased on the dayshift. He also said there were more 20
routes leaving before 10:00 p.m. After some back and forth, Williams responded that he had
been permitted to leave early for two years, even when they were in their busy season. Vaivao
explained that in the busy season they averaged 660,000 cases top ship but last week they had
662,000. He noted that Williams was one of a handful of employees with special requests, and
they could not accommodate him at the time, but would entertain it if and when they could. 25
Vines-Bright noted that Williams could use annual leave, and Vaivao offered to switch his days
off to accommodate his schedule. (GC Exh. 20.)
Vaivao was not aware that Williams was going home early every third Wednesday until
Gutierrez called him to speak to Williams about it in August. (Tr. 583, 586.) According to 30
Vaivao, Shamrock gained additional business from schools, and the business from its customer
Harkins was consolidated to Tuesdays and Wednesdays. This required Williams to load an
additional truck on Wednesdays. Shamrock does not use temporary workers during the summer
because caseloads are lower and they want to ensure employees get 40 hours of work. (Tr. 584–
587.) 35
A review of shipping cases shows that the caseload was highest in the months of
February–May for each of the fiscal years from 2014–2016.36 (GC Exh. 13.)
2. Analysis40
The Section 8(a)(1) legal standards set forth above apply. I find that Gutierrez’s comment
that Williams could not leave early because of the flyers would reasonably tend to coerce
employees and interfere with their rights, and it was therefore a violation of Section 8(a)(1). It is

35 Williams recorded the entire meeting.
36 GC Exh. 13 does not reflect the number of cases that must be loaded by 10:00 p.m. (Tr. 597.)
JD–(SF)-18-17
19
undisputed that union flyers critical of management were distributed at the warehouse in April
and May 2016. A reasonable employee would take the comments to mean that there can be no
more leniencies in scheduling because of employees’ union activity.
I credit William’s testimony about the August 14 conversation for a number of reasons. 5
First, I found Williams to be a credible witness. He testified in an open and forthcoming manner
and did not appear to embellish his testimony. Moreover, as a current employee testifying
against his own pecuniary interests, I find his testimony particularly reliable. See fn. 8, supra.
Finally, Williams’ testimony is not contradicted, as Gutierrez did not remember whether he told
Williams the flyers had anything to do with the reason he could not leave early. (Tr. 124.) 10
Further bolstering Williams’ testimony is the back-and-forth that occurred at the August
17 meeting where Williams reminded Gutierrez he had also said something about a flyer.
Gutierrez responded, “Well, there were things that were posted and there were things that were
said, um, that I wasn't fair to everyone. So the only way to knock that noise is just to make sure . 15
. . .” This comment, like the August 14 comment, would reasonably be construed to mean that
union activity critical of management would be dealt with in the form of stricter adherence to
rules and withdrawal of previously granted leniencies.
Turning to the Section 8(a)(3) allegation, the Act states that it is an unfair labor practice 20
for an employer “by discrimination in regard to hire or tenure of employment . . . to encourage or
discourage membership in any labor organization.” Section 8(a)(3) claims involving mixed
motives are analyzed under Wright Line, supra. To prove a violation under Wright Line, the
General Counsel must make an initial showing “sufficient to support the inference that protected
conduct was a ‘motivating factor’ in the employer's decision.” 251 NLRB at 1089. The elements 25
commonly required to support this showing are union activity, employer knowledge of that
activity, and antiunion animus by the employer. Briar Crest Nursing Home, 333 NLRB 935, 936
(2001).
If the General Counsel makes the initial Wright Line showing, the burden shifts to the 30
employer “to demonstrate that the same action would have taken place even in the absence of the
protected conduct.” Wright Line, supra. The employer cannot carry this burden merely by
showing that it also had a legitimate reason for the action, but must persuade, by a preponderance
of the evidence, that the action would have taken place absent the protected activity. Dentech
Corp., 294 NLRB 924, 956 (1989).35
I find the General Counsel has met the initial Wright Line burden. It is undisputed that
Williams passed out union flyers critical of management in April and May 2016. On August 14,
when Gutierrez told Williams he could not go home anymore, he said it was because of the
flyers, which is direct evidence of discriminatory intent. Gutierrez’s comments about the flyers 40
on August 14 and 17 prove he knew about them. There is no evidence regarding distribution of
any other flyers critical of management in or around this same time period. I find, therefore, that
Gutierrez’s comments referred to union flyers.
The General Counsel contends an inference should be drawn that floor captain Richard 45
Sanchez informed management about the flyers because he walked in the direction of Vaivao
and O’Meara’s offices following a heated conversation in the break room about the content of
JD–(SF)-18-17
20
one of the union flyers in May 2016. (GC Br. 43.) I decline to make this specific inference
because it would be too speculative. The evidence does establish, however, that through May
2016, employees reported to Vaivao when other employees would talk about the Union.37 (Tr.
147–148.) Williams and Ditto passing out flyers and talking to employees in the break room was
the only employee union activity that occurred in May 2016. Accordingly, I find that Vaivao 5
was aware of it.38
Turning to animus, it is clear from the content of his comments that Gutierrez took
umbrage with the flyers’ suggestion that employees were not being treated fairly. See Nichols
Aluminum, LLC, 361 NLRB No. 22 (2014) (General Counsel is not required to show10
“particularized motivating animus towards the employee's own protected activity or to further
demonstrate some additional, undefined ‘nexus’ between the employee's protected activity and
the adverse action.”) Moreover, antiunion animus can be inferred from the timing of the change
to Williams’ schedule, which occurred the first Sunday he reminded Gutierrez of his PTA
meeting following distribution of the union flyers. See Golden Day Schools v. NLRB, 644 F.2d 15
834, 838 (9th Cir. 1981). Animus can also be inferred from the presence of other unfair labor
practices, as found herein and in prior recent decisions. Richardson Bros. South, 312 NLRB 534
(1993); Aliante Gaming, LLC, 364 NLRB No. 78, slip op. at 1 fn.5 (2016).39
The Respondent argues that management’s decision not to let Williams leave early in 20
August 2016 and thereafter was not an adverse action. Specifically, the Respondent argues that
Gutierrez had accommodated Williams by permitting him to leave early in the past, and it
offered continued accommodation in the form of changing his schedule or permitting him to use
annual leave every fourth Wednesday.40 The Respondent also argues that Williams was not
routinely granted permission to leave early every third Wednesday. While both the 25
Respondent’s assertions are true, I still find Williams was subjected to an adverse action when
his previous flexibility to leave early on the third Wednesday of every month, subject to
approval, was taken away in blanket fashion. It is clear from Gutierrez’s August 15, 2016, email
to human resources stating, “Last year he was leaving early one Wed a month for his kids school.
I told him that I couldn’t do it this year because if I do it for him I would have to do it for 30
everyone else” that Gutierrez was aware of Williams’ regular practice. The fact Williams did not
leave early every single third Wednesday does not save the wholesale rescission from
constituting an adverse action. See Wal-Mart Stores, Inc., 340 NLRB 220 (2003) (Rescinding
previously granted schedule deviation was adverse action).
35
Based on the foregoing, I find the General Counsel has made an initial showing sufficient
to support the inference that protected conduct was a motivating factor in its decision rescind its

37 Vaivao was evasive on this point until confronted with his prior testimony. (Tr. 142–147.)
38 This finding is relevant even though Vaivao was not the decision-maker. “[I]t is well established
that the Board imputes a manager’s or supervisor’s knowledge of an employee's protected concerted
activities to the decisionmaker, unless the employer affirmatively establishes a basis for negating such
imputation.” G4S Secure Solutions, Inc., 364 NLRB No. 92, slip op. at 4 (2016).
39 Consistent with the Board’s analysis in Aliante Gaming, I do not rely on the findings in previous
ALJ decision to establish animus by themselves, but consider them as part of the totality of the
circumstances.
40 The latter accommodation does not square with the Respondent’s stated rationale that Williams was
no longer permitted to leave early because of workload.
JD–(SF)-18-17
21
previously-granted flexibility for Williams to leave work early as alleged. The burden therefore
shifts to the Respondent to show the same action would have taken place even absent union
activity. Given Gutierrez’s comment to Williams that his decision was motivated by the union
flyer, I find this burden has not been met.
5
After Williams requested a meeting with human resources to discuss the matter, Vaivao
offered an explanation that due to caseloads and Williams’ position as a loader, the workload
was too heavy to permit him to leave early. I find this is a pretextual after-the-fact justification.
Prior to Vaivao’s explanation, Gutierrez had already told Williams he could not leave early
because of the flyer. He did not check with anyone else in management prior to giving this 10
reason. In addition, Gutierrez had already conveyed to human resources that he told Williams he
could no longer accommodate him because he had to be fair to everyone. Vaivao admittedly was
not aware that Williams had going home early on some Wednesdays until Gutierrez called him
to speak to Williams in August 2016. The Respondent’s attempts to paint Vaivao as the
decisionmaker are not supported by the weight of record evidence, which shows that Vaivao 15
reacted to the decision, but he did not formulate it.41
Based on the foregoing, I find the General Counsel has sustained the burden to prove the
allegations related to D’Juan Williams as alleged in the complaint.
20
G. Cell Phone Rule
Complaint paragraphs 5(d) and 7 allege that the Respondent violated Section 8(a)(1)
when, on August 16, 2016, Jake Myers promulgated and since then maintained an overly-broad
and discriminatory rule or directive prohibiting its employees from having cell phones on the 25
warehouse floor.
1. Facts
On January 2, 2015, Shamrock distributed a policy on “Head/Ear & Cell Phone Use” 30
which states:
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 35
use within the warehouse is being discontinued effective January 4th, 2015.
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 40

41 I specifically discredit Vaivao’s testimony that he made the final decision because the evidence
shows Gutierrez did not inform Vaivao of his decision not to let Williams leave early until after it had
occurred. I note that even if Vaivao’s explanation provided a legitimate basis for the Respondent’s
actions, the evidence belies a showing that the Respondent acted pursuant to it. See Dentech Corp ,
supra; Metro-West Ambulance¸ 360 NLRB 1029, 1030 (2014). I also infer that McClelland, had he
appeared, would have testified that he knew about Williams’ union activity.
JD–(SF)-18-17
22
within the workplace. This is especially true if working around moving equipment or in
circumstances where a worker must be able to hear warning sounds.
An EMERGENCY phone line is in place should a family member need to be contacted
while at work and the message will be relayed to you. This line is for emergency use 5
ONLY.
(R Exh. 3.) 42
On August 16, 2015, Myers told Williams he could not have his cell phone on the 10
workroom floor. Williams said he used it as a recorder, not a cell phone, and Myers responded
that it was still a cell phone. (GC Exh. 18; Tr. 178, 298.)
2. Analysis
15
The General Counsel has the burden to prove that a rule or policy violates the Act. In
determining whether a work rule violates Section 8(a)(1), the appropriate inquiry is whether the
rule would reasonably tend to chill employees in the exercise of their Section 7 rights. Lafayette
Park Hotel, 326 NLRB 824, 825 (1998), end. 203 F.3d 52 (D.C. Cir. 1999).
20
Under the test enunciated in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004),
if the rule explicitly restricts Section 7 rights, it is unlawful. If it does not, “the violation is
dependent upon a showing of one of the following: (1) employees would reasonably construe the
language to prohibit Section 7 activity; (2) the rule was promulgated in response to union
activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Id. at 647. A 25
rule does not violate the Act if a reasonable employee merely could conceivably read it as
barring Section 7 activity. Rather, the inquiry is whether a reasonable employee would read the
rule as prohibiting Section 7 activity. Id. The question of whether a rule or policy violates the
Act requires a balancing between an employer's right to implement certain legitimate rules of
conduct in order to maintain a level of productivity and discipline at work with the right of 30
employees to engage in Section 7 activity. Firestone Tire & Rubber, 238 NLRB 1323, 1324
(1978).
The Board must give the rule under consideration a reasonable reading and ambiguities
are construed against its promulgator. Lutheran Heritage, supra at 647; Lafayette Park Hotel, 35
supra at 828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C. Cir. 2007). Moreover, the
Board must “refrain from reading particular phrases in isolation, and it must not presume
improper interference with employee rights.” Lutheran Heritage, supra at 646.
On its face, the Respondent’s rule is not overly-broad, as it speaks only to musical 40
devices. Myers extended it, however, when he told Williams he could not have his cell phone on
the workroom floor. Cell phones are used for more than listening to music—they are also
commonly used as cameras and recording devices. The General Counsel cites to Rio All-Suites

42 Judge Wedekind previously ruled that this policy was not overly broad, observing that “the rule on
its face does not ban employees from carrying cell phones or using them to take pictures or videos.”
JD(SF)–05–16, p. 59.
JD–(SF)-18-17
23
Hotel & Casino, 362 NLRB No. 190, slip op. at 4 (2015), where the Board found a rule barring
the use of camera phones and recordings without prior permission was overly-broad. See also
Whole Foods Market, 363 NLRB No. 87 (2015). This caselaw supports the General Counsel’s
contention that Myers’ broadly worded instruction to Williams would reasonably be construed as
prohibiting him from using his cell phone to memorialize activity protected by Section 7, and 5
therefore runs afoul of Lutheran Heritage.
The Respondent contends that Williams understood Myers’s instruction as simply an
enforcing the written policy. Williams testified, however, that he understood that he was not
permitted to have his cell phone on the workroom floor, which is broader than the written policy. 10
(Tr. 382.)
While the policy provides business justification for not allowing musical devices in the
warehouse, the Respondent provided no justification for Myers’ more broad proscription.
Notably, Williams told Myers he used it his phone as a recording device, not as a phone, but this 15
did not change Myers’ instruction. Accordingly, I find the General Counsel has met the burden
to prove Myers promulgated and enforced an overly-broad rule regarding cell phone usage.
H. Operations Manager Tim O’Meara’s Comments to Employee Mike Meraz
20
Complaint paragraphs 5(b) and 7 alleged the Respondent violated Section 8(a)(1) when
June 8 or 9, 2016, Tim O’Meara: (1) blamed the Union’s organizing campaign for preventing
Respondent from making changes to its employees’ wages, benefits, and other working
conditions by telling its employees that every policy and pay plan was frozen because of Union;
and (2) promised its employees improvements in Respondent’s disciplinary policy if its 25
employees refrained from continued organizational efforts by telling its employees that, if not for
the Union campaign, Respondent would consider changing its policies.
1. Facts
30
On June 9, 2016, forklift operator Mike Meraz met with O’Meara in Santamaria’s office.
Meraz recorded the meeting. O’Meara gave Meraz a disciplinary form that reflected safety
violation points assessed to him after he broke a sprinkler in the warehouse. Meraz question
whether the points stayed on his record for two years, and O’Meara responded that they did. The
following exchange ensued:35
Meraz: Yeah, were they ever going to re-look at that?
O’Meara: “I will be honest with you right now. Every policy, every pay plan that is in
the warehouse is frozen.”40
Meraz: What I mean is as far as . . .
O’Meara: Because of the current situation we’re in. There’s nothing I can do with
anything. 45
JD–(SF)-18-17
24
Meraz: So even for that two years, 'cause that seems, I mean, excessive. I've been doing
this stuff since '85 and I've never seen anywhere being like that.
O'Meara: Yeah, well, um, unfortunately it can't even be looked at.
5
Meraz: Yeah.
O'Meara: Now if we weren't in our current situation, yeah, I think in years past we've
had policy committees that have been put together by various people that have, you
know, looked at policies and changed them.10
(GC Exh. 21.) O’Meara testified at a hearing on May 25, 2016, in cases 28-CA-167910 and 28-
CA-169970, which included allegations that he was involved in committing unfair labor
practices. Shamrock Foods, JD (SF)-35-16 (N.L.R.B. Div. of Judges, September 28, 2016).
15
2. Analysis
The Section 8(a)(1) legal standards set forth above apply here.
O’Meara testified that he did not recall telling Meraz that policies and pay plans were 20
frozen or that if they weren’t in the current situation, the safety policies and pay plans could be
looked at. (Tr. 252–254.) The tape recording of the conversation reveals that O’Meara did in
fact make these comments.
The General Counsel cites to Grouse Mountain Assoc., 333 NLRB 1322, 1324 (2001), 25
where the Board held a comment that the employer “could not implement any new benefits while
union organizing efforts were active,” was overly broad because it effectively placed the delay
on the union campaign. See also Kentucky Fried Chicken, 341 NLRB 69, 69–70 (2004).
In the instant case, O’Meara blamed the “current situation” for the fact that policies and 30
pay plans in the warehouse were frozen, and there was nothing he could do about anything. The
“current situation” is easily decoded as the union’s activity and ongoing litigation related to it.43
The Respondent pointed to no evidence regarding any other “situation” that required Shamrock
to freeze all policies in the warehouse.
35
In addition, O’Meara said that if they weren’t in their current situation, “yeah, I think in
years past we’ve had policy committees that have been put together by various people that have,
you know, looked at policies and changed them.” This implies that if there was not union
activity, the Respondent would be open to making improvements to its disciplinary policy.
40
Based on the foregoing, I find the General Counsel has proven the allegations related to
Tim O’Meara’s comments to Mike Meraz.

43 For this reason, the Respondent’s reliance on The Singer Co. 199 NLRB 1195 (1972), and like
cases is misplaced.
JD–(SF)-18-17
25
CONCLUSIONS OF LAW
By granting employees benefits in the form of more elaborate prizes and enhanced paid
time at its annual holiday banquet, blaming the Union for preventing changes to wages, benefits,
and other working conditions; promising improvements in its disciplinary policy if its employees 5
refrained from continued organizational efforts; blaming the Union and employees’ union
activities for stricter enforcement of rules and withdrawal of benefits; threatening employees
with stricter enforcement of rules and withdrawal of benefits; and promulgating and maintaining
an overly-broad rule prohibiting cell phones on the warehouse floor, the Respondent has violated
Section 8(a)(1) of the Act.10
By rescinding its practice of permitting employee D’Juan Williams (Williams) to leave
work early on certain days to attend PTA meetings, the Respondent has violated Section 8(a)(3)
and (1) of the Act.
15
By the above conduct, the Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The Respondent did not otherwise engage in any other unfair labor practices alleged in
the consolidated complaints in violation of the Act.20
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I shall
order it to cease and desist therefrom and to take certain affirmative action designed to effectuate 25
the policies of the Act.
Having granted employees benefits in the form of more elaborate prizes and enhanced
paid time at its annual holiday banquet, the Respondent will be ordered to cease and desist from
these actions.30
Having blamed the Union for preventing changes to wages, benefits, the Respondent will
be ordered to cease and desist from this action.
Having blamed the Union and employee’s union activities for stricter enforcement of 35
rules and withdrawal of benefits, the Respondent will be ordered to cease and desist from this
action.
Having promised improvements in its disciplinary policy if its employees refrained from
continued organizational efforts, the Respondent will be ordered to cease and desist from this 40
action.
Having threated employees with stricter enforcement of rules, the Respondent will be
ordered to cease and desist from this action.
45
Having promulgated and maintained an overly-broad rule prohibiting cell phones on the
warehouse floor, the Respondent will be ordered to cease and desist from this action.
JD–(SF)-18-17
26
Having found that the Respondent rescinded its practice of permitting flexibility in
D’Juan Williams’ schedule to attend PTA meetings in violation of Section 8(a)(3) and (1) of the
Act, the Respondent will be ordered to return to its previous practice of permitting flexibility in
D’Juan Williams’ schedule to attend PTA meetings, and to refrain from rescinding flexibility in 5
his work schedule or the work schedule of any other employee for discriminatory reasons.
I will order that the Employer post a notice in the usual manner, including electronically
to the extent mandated in J. Picini Flooring, 356 NLRB 11, 15–16 (2010). In accordance with J.
Picini Flooring, the question as to whether an electronic notice is appropriate should be resolved 10
at the compliance phase. Id., slip op. at 3.
I will also order that the Respondent hold a meeting or meetings, scheduled to have the
widest possible attendance, at which the attached notice marked “Appendix” shall be read to
employees by Kent McClelland in the presence of a Board agent. This remedial action is 15
intended to ensure that employees “will fully perceive that the Respondent and its managers are
bound by the Act’s requirements.” Federated Logistics & Operations, 340 NLRB 255, 258
(2003), enfd. 400 F.3d 920 (D.C. Cir. 2005).
The Board has broad authority under Section 10(c) to devise remedies that “effectuate the 20
policies of the Act.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900 (1984). In determining an
appropriate remedy, the Board has a duty “under Section 10(c) to tailor its remedies to varying
circumstances on a case by case basis, in order to ensure that its remedies are congruent with the
facts of each case.” Diamond Walnut Growers, Inc., 340 NLRB 1129, 1132 (2003). As such,
Thus, the Board has “broad discretion to fashion ‘a just remedy’ to fit the circumstances of each 25
case it confronts.” Excel Case Ready, 334 NLRB 4, 5 (2001) (quoting Maramont Corp., 317
NLRB 1035, 1037 (1995)); see also Pacific Beach Hotel, 361 NLRB No. 65, slip op. at 3 (2014).
Judge Wedekind previously determined that President and CEO Kent McClelland was
complicit in the commission of unfair labor practices, including the decision to terminate vocal 30
union advocate Wallace.44 See JD(SF)–05–16, supra. In the instant case, by virtue of adverse
inferences, I have found that he was complicit in the commission of unfair labor practices. The
Union and employees are now aware that McClelland refused to even show up at the hearing,
despite being served with a valid subpoena. Employees are undoubtedly left with the impression
that McClelland does not believe he is bound by the Act’s requirements. Federated Logistics & 35
Operations, supra. Requiring McClelland to read the notice, is a just remedy based on the
circumstances of this case, in that it will help to ensure employees that Shamrock’s President and
CEO understands and takes seriously his obligations to comply with the Act. 45
On these findings of fact and conclusions of law and on the entire record, I issue the 40
following recommended46

44 If Judge Wedekind’s findings are not upheld on appeal, this rationale will not serve as a basis for
the notice reading. This also holds true if the Board considers any of Shamrock’s unfair labor practices
found by Judge Tracy in Shamrock Foods, JD (SF)-35-16, supra, as a basis for the notice reading. I note
that Judge Wedekind ordered a notice reading in his decision.
45 I emphasize that this measure is remedial, not a punitive sanction.
46 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
JD–(SF)-18-17
27
ORDER
The Respondent, Shamrock Foods Company, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall5
1. Cease and desist from
(a) Granting employees benefits in the form of more elaborate prizes and enhanced paid
time at its annual holiday banquet;10
(b) Blaming the Union and employees’ union activities for preventing changes to wages,
benefits, and other working conditions;
(c) Blaming the Union and employees’ union activities for stricter enforcement of rules 15
and withdrawal of benefits;
(d) Promising improvements in its disciplinary policy if its employees refrain from
continued organizational efforts;
20
(e) Promulgating and maintaining an overly-broad rule prohibiting cell phones on the
warehouse floor;
(f) Discriminatorily rescinding its practice of permitting flexibility in D’Juan Williams’
schedule to attend PTA meetings, or rescinding flexibility in any employee’s schedule for 25
discriminatory reasons;
(g) 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.
30
2. Take the following affirmative action necessary to effectuate the policies of the Act
(a) Rescind any work rules prohibiting employees from using cell phones or other recording
devices to engage in protected activity;
35
(b) Restore the flexibility in employee D’Juan Williams’ schedule to the same extent it
had previously been granted;47
(c) Within 14 days of the date of the Board's Order, rescind from its files any references
to the unlawful change in D’Juan Williams’ work schedule and notify him this has been 40
done and will not be used against him in any way, or, if there is no reference in the
Respondent’s files, notify D’Juan Williams in writing that the flexibility he was

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.
47 Any disagreement on this point will be addressed in compliance proceedings if necessary.
JD–(SF)-18-17
28
previously granted in his schedule has been restored and that the schedule change will not
be used against him in any way.
(d) Within 14 days after service by the Region, post at its facility in Phoenix, Arizona,
copies of the attached notice marked “Appendix”48 in both English and Spanish. Copies 5
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 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 10
intranet or an internet site, and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. 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 15
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 December 19,
2015.
(e) Within 14 days after service by the Region, hold a meeting or meetings, scheduled to 20
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 in the
presence of a Board agent, with translation available for Spanish-speaking employees.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn 25
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar as it alleges
violations of the Act not specifically found.30
Dated, Washington, D.C. April 25, 2017
____________________35
Eleanor Laws
Administrative Law Judge

48 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 do anything to prevent you from exercising these rights.
WE WILL NOT grant you benefits, such as more elaborate prizes and enhanced paid time at our
annual holiday banquet , in an effort to discourage you from supporting a union.
WE WILL NOT blame your union activity for preventing us from making improvements to your
pay plans or work policies.
WE WILL NOT blame the Union or your union activity for our stricter enforcement of work rules
or threaten you with stricter enforcement of work rules to discourage your union support.
WE WILL NOT promise you benefits or improved working conditions based on whether you stop
engaging in union activity or stop supporting the Union.
WE WILL NOT announce work rules prohibiting you from using your cell phones or other
recording devices to engage in protected activity, such as documenting your working conditions, and
WE WILL rescind any such rules that prevent you from engaging in that activity.
WE WILL NOT rescind our allowing flexibility in your work schedules, such as leaving early on
certain days, because you or others engage in union activity.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL remove from our files all references to the stricter schedule enforcement of D’Juan
Williams, and WE WILL notify him in writing that this has been done, or if there is no
reference in his file, WE WILL notify him in writing that the flexibility he was previously
granted in his schedule has been restored and the schedule change will not be used against him in
any way.
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 1400, 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-177035 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) 416-4755.