Sysco Columbia, LLC

National Labor Relations Board - Unpublished Board Decisions

Dec 9, 2019

10-CA-197586 (N.L.R.B. Dec. 9, 2019)

368 NLRB No. 129
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Sysco Columbia, LLC and International Brotherhood
of Teamsters Local Union 509. Cases 10–CA–
197586, 10–CA–197588, 10–CA–203636, and 10–
CA–210623
December 9, 2019
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS MCFERRAN
AND KAPLAN
On August 16, 2018, Administrative Law Judge Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General Coun-
sel filed an answering brief, and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1

1 Member Emanuel is recused and took no part in the consideration
of this case.
2 The Respondent has requested oral argument. The request is denied
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the findings. In addition, some of the Respondent’s exceptions
allege that the judge’s rulings, findings, and conclusions demonstrate
bias against it. On careful examination of the judge’s decision and the
entire record, we are satisfied that the Respondent’s contentions are with-
out merit.
The judge mistakenly referred to operating companies under Sysco
Corporation’s market president for the Southeast, Michael Brawner, as
“Sysco Southeast” or “Sysco Southeast Division,” even though there is
no evidence of any such entity or formal division. This error does not
affect our disposition of this case.
4 We adopt the judge’s findings that the Respondent violated Sec.
8(a)(1) by Brawner’s solicitation of grievances and promise of benefits;
by the Respondent’s statement, made via a DVD that was viewed by em-
ployees, that wages and benefits would be “frozen at the status quo” if
the Union won the two Board elections at issue; and by the Respondent’s
subsequent letter, sent to employees on September 25, 2017, informing
them that the pay increases “that would typically be made in September”
were being withheld because it was required by law to “maintain . . . the
status quo . . . until the Union’s petitions are resolved,” and attributing
that withholding to the Union’s actions. Because we adopt the judge’s
conclusions regarding Brawner, the DVD, and the September 25 letter,
we find it unnecessary to pass on the similar allegations regarding super-
visor-in-training James Fix, including whether he was a Sec. 2(11) su-
pervisor, because it would not affect the remedy. The judge found that
the Respondent violated Sec. 8(a)(3) and (1) by granting employees the
benefit, just before the election, of parking closer to their work area. We
agree with the judge that the Respondent violated Sec. 8(a)(1) by grant-
ing this benefit, but we do not find an 8(a)(3) violation because we do
The Board has considered the decision and the record in
light of the exceptions and briefs2 and has decided to af-
firm the judge’s rulings, findings,3 and conclusions,4 to
amend the remedy,5 and to adopt the recommended Order
as modified and set forth in full below.6
ORDER
The National Labor Relations Board orders that the Re-
spondent, Sysco Columbia, LLC, Columbia, South Caro-
lina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising employees benefits to discourage them
from supporting Teamsters Local 509 (the Union) or any
other labor organization.
(b) Soliciting employee complaints and grievances to
discourage employees from supporting the Union or any
other labor organization.
(c) Threatening employees that their wages and other
benefits will be frozen if they vote for union representa-
tion.
not find that the General Counsel established that the granting of the ben-
efit was discriminatory. See, e.g., Valmet, Inc., 367 NLRB No. 84, slip
op at 4 (2019). We amend the judge’s conclusions of law according to
these changes.
5 The judge’s remedy provided for a public reading of the notice by a
Board agent or responsible management official. We do not find this
extraordinary remedy warranted in this case. See, e.g., Bodega Latina
Corp. d/b/a El Super, 367 NLRB No. 34, slip op. at 1 (2018). We ac-
cordingly amend the judge’s remedy to remove the notice-reading rem-
edy. We also amend the judge’s remedy to provide that the make-whole
remedy for withheld wage adjustments shall be computed in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502
(6th Cir. 1971), rather than with F. W. Woolworth Co., 90 NLRB 289
(1950). The Ogle Protection formula applies where, as here, the Board
is remedying “a violation of the Act which does not involve cessation of
employment status or interim earnings that would in the course of time
reduce backpay.” Ogle Protection, supra at 683; see also Pepsi America,
Inc., 339 NLRB 986, 986 fn. 2 (2003).
Member McFerran would adopt the judge’s recommended notice-
reading remedy as “necessary to enable employees to exercise their Sec-
tion 7 rights free of coercion.” See e,g., Wal-Mart Stores, 364 NLRB
No. 118, slip op. at 40 (2016). The Respondent’s unlawful misconduct
was not confined to its preelection campaigning (in part by a high-rank-
ing corporate official) but included, 5 months after the two elections were
effectively suspended, the unlawful withholding of annual pay increases
to both units (while granting increases to other employees), and the letter
unlawfully blaming the Union for that action. As the judge observed,
these actions “drove home the point that [the employees] were being pun-
ished for seeking to organize, reinforcing the earlier unlawful message
that voting for the Union would result in no wage increase.” The Board
has required notice reading to remedy similar violations. See J&J Snack
Foods Handhelds Corp., 363 NLRB No. 21, slip op. at 1 (2015); Carey
Salt Co., 360 NLRB 201, 201–202 (2014); Homer D. Bronson Co., 349
NLRB 512, 515 (2007), enfd. 273 Fed.Appx. 32 (2d Cir. 2008); Feder-
ated Logistics & Operations, 340 NLRB 255, 256 (2003), rev. denied
400 F.3d 920 (D.C. Cir. 2005).
6 We shall modify the judge’s recommended Order and substitute a
new notice to conform to the amended remedy and the Board’s standard
remedial language.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
(d) Telling employees that they will not receive wage
adjustments because the Union filed petitions to represent
them and filed unfair labor practice charges.
(e) Withholding wage adjustments because employees
engaged in union activity.
(f) Conferring benefits on employees to discourage
them from supporting the Union or any other labor organ-
ization.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make employees whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section
of the judge’s decision as amended in this decision.
(b) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and file with the Regional Director for Region 10, within
21 days of the date the amount of backpay is fixed, either
by agreement or Board order, a report allocating the back-
pay award to the appropriate calendar years.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in electronic form, neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(d) Within 14 days after service by the Region, post at
all of its South Carolina and Georgia facilities copies of
the attached notice marked “Appendix.”7 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 10, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondent has gone out of business
or closed the facility involved in these proceedings, the

7 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
Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former em-
ployees employed by the Respondent at any time since
March 1, 2017.
(e) Within 21 days after service by the Region, file with
the Regional Director for Region 10 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. December 9, 2019
______________________________________
John F. Ring, Chairman
______________________________________
Lauren McFerran, Member
______________________________________
Marvin E. Kaplan, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT promise you benefits to discourage you
from supporting Teamsters Local 509 (the Union) or any
other labor organization.
WE WILL NOT solicit your complaints and grievances to
discourage you from supporting the Union or any other
labor organization.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SYSCO COLUMBIA, LLC 3
WE WILL NOT threaten you that your wages and other
benefits will be frozen if you vote for union representa-
tion.
WE WILL NOT tell you that you will not receive wage
adjustments because the Union filed petitions to represent
you and filed unfair labor practice charges.
WE WILL NOT withhold wage adjustments from you be-
cause you engaged in union activity.
WE WILL NOT confer benefits on you to discourage you
from supporting the Union or any other labor organiza-
tion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL make you whole for any loss of earnings and
other benefits you suffered as a result of our unlawful
withholding of your wage adjustments, plus interest.
WE WILL compensate you for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
and we will file with the Regional Director for Region 10,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar years for each
employee.
SYSCO COLUMBIA, LLC
The Board’s decision can be found at
http://www.nlrb.gov/case/10-CA-197586 or by using the QR
code below. Alternatively, you can obtain a copy of the de-
cision from the Executive Secretary, National Labor Rela-
tions Board, 1015 Half Street, S.E., Washington, D.C. 20570,
or by calling (202) 273-1940.
John R. Evans and Jordan Wolfe, Esqs., for the General Counsel.
Mark M. Stubley, John T. Merrell, and Andrew D. Frederick,
Esqs. (Ogletree, Deakins, Nash, Smoak & Stewart, P.C.), for
the Respondent.

1 All dates hereinafter occurred in 2017 unless otherwise indicated.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This matter is be-
fore me on an amended consolidated complaint and notice of
hearing (the complaint) issued on February 15, 2018, arising
from unfair labor practice charges that International Brotherhood
of Teamsters Local Union 509 (the Union) filed against Sysco
Columbia, LLC (the Respondent or the Company), in connection
with the Union’s attempt to represent the Company’s drivers and
its fleet shop mechanics and spotters.
Pursuant to notice, I conducted a trial in Columbia, South Car-
olina, on March 12–16 and May 21–24, and took videoconfer-
ence testimony on June 1, 2018, during which I afforded the par-
ties a full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence.
Issues
(1) Did the Respondent, in March and/or April 2017,1 in a
DVD that was played at mandatory preelection company meet-
ings and mailed to employees, threaten employees that their
wages would remain frozen during negotiations if they chose
the Union to represent them?
(2) Did Michael Brawner, market president for the Southeast
Division of Sysco Corporation, in March and/or April, at such
meetings and in conversations with individual employees, (a)
solicit employee complaints and grievances; and (b) promise
increased benefits and improved terms and conditions of em-
ployment if employees rejected the Union?
(3) Was Fleet Maintenance Supervisor James Fix, in mid-
April, a supervisor and agent of the Respondent within the
meaning of Section 2(11) and (13) of the Act as to mechanics
and spotters?
(4) If so, in that time period, did the Respondent, through Fix:
(a) solicit employee complaints and grievances; (b) promise
employees that they would receive increased benefits and im-
proved terms and conditions of employment, including earlier
wage increases, if they voted against union representation; (c)
blame the Union for not getting wages increases and threaten
employees that their pay would be frozen if they voted in the
Union; (d) interrogate employees about the impact of the Re-
spondent’s promises to gauge their level of support for the Un-
ion; and (e) suggest that employees rescind the election pro-
cess?
(5) Did the Respondent, in about mid-April, confer a benefit
on mechanics and spotters by allowing them to start parking
closer to their work areas, in violation of Section 8(a)(3) and
(1) of the Act?
(6) Did the Respondent, by letter dated September 25, unlaw-
fully inform drivers and mechanics and spotters that they
would not receive September wage adjustments because the
Union had filed representation petitions and unfair labor prac-
tice charges?
(7) Did the Respondent, in September, withhold wage
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
adjustments from those employees in violation of Section
8(a)(3) and (1)?
Witnesses and Credibility
Counsels for the General Counsel (the General Counsel)
called:
As 611(c) witnesses, Michael Brawner and Michael Turner,
the Respondent’s operations vice president.
Chris Rosell, an international organizer for the Union.
Drivers Jonathan Brewer, Travis Gates, Kyle Hughes, Phillip
Otto, Joseph Perisee, and Patrick Windham.
Former Drivers Dane LaCount; John Porter III; and Joshua
Taylor, who was promoted to the position of transportation su-
pervisor about a month-and-a-half prior to his testimony on
March 16, 2018, pursuant to subpoena by the General Counsel.
Mechanic Robert Anderson.
Former Mechanic Christopher Bookert.
Spotter Carlos Nuttry.
The Respondent called:
Brawner, Turner, and Fix (who was promoted in September to
his current position of fleet maintenance manager).
Bogene (Bo) Nash, transportation director.
Ashley Buster, transportation supervisor.
Almetrice (Kema) Weldon, head of human resources.
Ronn English, employer consultant with Kulture Consulting
LLC.
Drivers Kelvin Bacon, Joshua Cantrell, Dennis Hills, Rodney
Mayers, Fernando Robinson, Alton Salters, Todd Shannon,
and Tyler Starling.
Mechanic Joshua Powell.
In making credibility resolutions, I have considered the estab-
lished precept that a witness may be found partially credible; the
mere fact that the witness is discredited on one point does not
automatically mean that he or she must be discredited in all re-
spects. Golden Hours Convalescent Hospitals, 182 NLRB 796,
799 (1970). Rather, a witness’ testimony is appropriately
weighed with the evidence as a whole and evaluated for plausi-
bility. Ibid at 798–799; see also MEMC Electronic Materials,
Inc., 342 NLRB 1172, 1183 fn. 13 (2004), quoting Americare
Pine Lodge Nursing, 325 NLRB 98, 98 fn. 1 (1997), enf. granted
in part, denied in part, 164 F.3d 867 (4th Cir. 1999); Excel Con-
tainer, 325 NLRB 17, 17 fn. 1 (1997). As Chief Judge Learned
Hand stated in NLRB v. Universal Camera Corp., 179 F.2d 749,
754 (2d Cir. 1950), regarding witness testimony, “[N]othing is
more common in all kinds of judicial decisions than to believe
some and not all.”
I have also considered the longstanding principle that “the tes-
timony of current employees that contradicts statements of their
supervisors is likely to be particularly reliable because these wit-
nesses are testifying adversely to their pecuniary interests.”
Flexsteel Industries, 316 NLRB 745, 745 (1995), enfd. 83 F.3d
419 (5th Cir. 1996), citing Gold Standard Enterprises, 234
NLRB 618, 619 (1978), enf. denied for other reasons, 607 F.2d
1208 (7th Cir. 1979) and Georgia Rug Mill, 131 NLRB 1304,

2 Tr. 178.
3 Tr. 752.
1304 fn. 2 (1961); see also Federal Stainless Sink Division of
Unarco, 197 NLRB 489, 491 (1972).
Finally, I note that when credibility resolution is not based on
observations of witnesses’ testimonial demeanor, the choice be-
tween conflicting testimonies rests on the weight of the evidence,
established or admitted facts, inherent probabilities, and reason-
able inferences drawn from the record as a whole. Taylor Mo-
tors, Inc., 366 NLRB No. 69 slip op. at 1 fn. 3 (2018); Lignotock
Corp., 298 NLRB 209, 209 fn. 1 (1990).
I have taken into account the many meetings that management
held with employees, some of which were lengthy, and the inev-
itable and understandable inability of witnesses to recall with
precision everything that was said. When some witnesses gave
more certain and detailed accounts of meetings or conversations,
I have generally credited them over witnesses whose versions
were equivocal or vague.
The most glaring lack of credibility was the refusal of Brawner
and English to acknowledge that the voices on a tape recording
(GC Exh. 16, with GC Exh. 6 being a certified transcription
thereof) were theirs’ and Weldon’s. At this point, I will discuss
the interrelated contention of the Respondent that the recording
(and transcript) are inadmissible because of lack of proper au-
thentication.
There is no dispute that Brawner spoke at “25th hour” meet-
ings that the Company conducted with employees from April
10–12, shortly before the scheduled elections in separate units of
drivers and of mechanics and spotters. The General Counsel
proffered a tape recording as being from one of three such meet-
ings Brawner held with Columbia drivers on April 12. Although
the driver who made the recording did not testify, Driver Brewer
listened to the recording at trial. He conceded on cross-exami-
nation and redirect examination that he could not be certain that
the tape recording was from the meeting he attended with 20–25
other Columbia drivers but that it “carried the same gist and
highlights. . . .”2
Nevertheless, when listening to the tape, Brewer testified that
he recognized the voices of Brawner, whom he had met before
and English, whom he had heard speak at prior meetings, as well
as Weldon’s voice. The voices I heard on the tape sounded iden-
tical to those of Brawner, English, and Weldon as they testified
before me.
When the tape recording was played to Brawner and English,
both were evasive when asked if they recognized their own
voices. Brawner conceded that he recognized Weldon’s voice
and that the voice on the tape “sounds like a recording that some-
one made of me talking, but I’m not 100 percent sure. . . .”3 Eng-
lish flat-out testified that he did not recognize his own voice even
though he testified that he recalled making statements reflected
in the transcript. In fact, when I asked if he remembered making
certain other statements contained in the recording, he flippantly
answered that the voice “sounded a lot like Ron White to me . . .
the comedian Ron White.”4 Furthermore, although English tes-
tified that he recognized Brawner’s voice on the DVD that was
played at the meeting and was part of the tape recording, he still
professed not to recall the voice elsewhere on the tape recording
4 Tr. 622.
SYSCO COLUMBIA, LLC 5
as Brawner’s.
Significantly, the Respondent’s counsels did not object to the
admission of that portion of the transcript of the recording relat-
ing to what was stated in the DVD (GC Exh. 6 at 16, L. 7 through
32, L.20) as an accurate rendition, other than as to relevance.
Furthermore, the tape recording generally tracked the script that
the Respondent used for the 25th hour meetings (R. Exh. 6),
which included showing of a DVD. Finally, other Columbia
drivers confirmed that Brawner made certain statements con-
tained in the tape recording.
With the exception of the portion pertaining to the DVD, the
Respondent objected to the receipt of the tape recording and tran-
script based on lack of authentication. However, authentication
of a tape recording does not require the individual who made it
to testify. A tape recording can be authenticated by testimony of
a witness with knowledge that supports a finding that the record-
ing is what the presenting party claims it is. H & M International
Transportation, Inc., 363 NLRB No. 139, slip op. at 1 fn. 1
(2016). Moreover, tape recordings can be authenticated by cir-
cumstantial evidence. See, e.g., U.S. v. Damrah, 412 F.3d 618,
628 (6th Cir. 2005) (videotape); U.S. v. Carrasco, 887 F.2d 794,
803–804 (7th Cir. 1989) (audiotape).
I have no doubt that the tape recording was an accurate rendi-
tion of what Brawner, English (and Weldon) said at the particular
meeting with drivers, whether or not Brewer was in attendance.
I base this conclusion on a myriad of factors: (1) the contents of
the tape, (2) my comparison of the voices on the tape with hear-
ing their voices as witnesses, (3) Brewer’s testimony, (4) con-
cessions by Brawner and English, (5) the admission without ob-
jection of the portion of the tape pertaining to the DVD, (6) the
tape’s general consistency with the Respondent’s script for the
25th hour meetings, and (7) the testimony of other driver wit-
nesses. To believe that the voices on the tape could have been
those of any other individuals and made at a meeting attended by
persons other than the Respondent’s drivers would be so far-
fetched as to be absurd. I therefore find the tape recording (and
transcript) to be admissible and reliable evidence.
In other respects, English and Brawner were not fully credible.
English was markedly evasive on cross-examination and gener-
ally exhibited a defensive posture. He first testified “no” in re-
sponse to my question whether Brawner deviated from the script
but on cross-examination eventually conceded that “[t]here were
conversations that Mr. Brawner had that were not written down
on the script.”5 Moreover, he confirmed the testimony of various
employee witnesses (both for the General Counsel and the Re-
spondent), consistent with the tape recording, that Brawner made
specific statements outside of the parameters of the script.
Brawner was repeatedly vague or evasive on what he said at
the 25th hour meetings, professing not to recall whether he made
a number of statements attributed to him by numerous employee
witnesses, both for the General Counsel and the Respondent, and
by English, and what he stated on the tape recording.
Drivers Gruber, Porter, Taylor, and Windham; Mechanic An-
derson; and Spotter Nuttry all testified about separate one-on-
one conversations they had with Brawner, either in person or by

5 Tr. 627.
6 Windham’s name erroneously appears as “Weldon” at Tr. 823.
telephone. I credit all of them for the following reasons. Firstly,
Brawner was not fully candid in testifying about what he said at
the 25th hour meetings. Secondly, their versions of what
Brawner said were quite similar in substance and consistent with
what he stated at group meetings. Thirdly, although Brawner
offered specific denials of complaint allegations, he did not spe-
cifically address their alleged conversations with him, with one
exception (Windham).6 Finally, none of them made any appar-
ent efforts to exaggerate what Brawner said to them.
Windham’s accounts of their two conversations were far more
credible. I find highly implausible Brawner’s testimony that
Windham initiated the first call and stated that he was calling
because he “just want[ed] to know how things are going”7 but
did not give a specific reason. Moreover, whereas Windham’s
offered concrete details of the contents of their conversations,
Brawner was extremely vague.
I note here the testimony of some of the employees on cross-
examination that their conversations with Brawner were cordial
and/or nonintimidating, but the allegations of solicitation of
grievances and promise of benefits are in the nature of carrots,
not sticks, so almost by definition such violations are meant to
be nonthreatening.
In crediting Anderson, Gruber, and Porter, I have considered
the following, including discrepancies brought out on cross-ex-
amination between their testimony on direct examination and
their affidavits.
Anderson seemed somewhat uncomfortable, but he testified
in considerable detail and appeared candid; his testimony on di-
rect and cross-examination was generally quite consistent; and
his testimony comported with that of other fleet shop employees.
The inconsistency between his affidavit and his testimony on the
number of meetings that Brawner attended was not substantial
enough to diminish what I find to be his overall credibility.
Similarly, Gruber testified in detail, was generally consistent
on direct and cross-examination, and was consistent with other
drivers. The two inconsistencies between his testimony and af-
fidavit were: (1) he testified that his supervisor was present at
two meetings, but the affidavit stated that he recalled him at one;
and (2) he testified that driver Chris Collins asked a question at
a meeting, but his affidavit said that he could not recall the
driver’s name. Gruber explained that he later thought it over and
recalled that the driver was Collins. These discrepancies were in
peripheral matters that did not undermine his general credibility.
Finally, Porter testified that he had a phone conversation with
Brawner after the petition was filed, whereas his affidavit stated
that it was about a month after the election. Although these
timeframes are not necessarily incompatible, his description of
the conversation makes it much more likely that it was prior to
the election. Nonetheless, Porter was unequivocal and detailed
in relating the contents of their conversation, and that one possi-
ble flaw does not detract from the reliability of his account of
what was said.
Mechanics Anderson and Bookert and Spotter Nuttry testified
about separate discussions about wages and/or working condi-
tions that Fix initiated with them in early to mid-April almost
7 Tr. 824.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
immediately after his promotion from master mechanic to fleet
service supervisor at the end of March. I credit them over Fix’s
denials, noting the similar substance of their accounts of what
Fix said. Furthermore, Anderson offered a detailed account of
his conversation with Fix; in contrast, Fix conceded that he had
a discussion with Anderson about pay ranges available to me-
chanics but provided absolutely no details other than disputing
Anderson’s testimony about the document that he showed to An-
derson (GC Exh. 11 versus R. Exh. 38). Simply put, I do not
believe that all three employees engaged in concerted fabrica-
tion.
Crediting their accounts of what Fix said to them, I have to
conclude that he, a new first-line supervisor, would not have in-
itiated and held those discussions without having been invested
with actual authority by management. I also credit the testimony
of Anderson, Bookert, and Nuttry that at the time of those con-
versations, Fix was not performing mechanic’s work as he was
transitioning to take over from departing Fleet Maintenance Su-
pervisor Randall Drafts.
Regarding meetings at the Hilton Head location, driver
LaCount and shuttle driver Perisee testified for the General
Counsel; shuttle driver Mayers and driver Shanning for the Re-
spondent. Mayer had a limited recall, and I credit the fuller ver-
sions of the other witnesses, which were not necessarily incon-
sistent.
Facts
Based on the entire record, including testimony and my obser-
vations of witness demeanor, documents, written and oral stipu-
lations, the thoughtful posttrial briefs that the General Counsel
and the Respondent filed, and the Respondent’s supplemental
authority, I find the following.
At all times material, the Respondent, a limited liability com-
pany, has had an office and distribution facility located in Co-
lumbia, South Carolina, and been engaged in selling, marketing,
and distributing food products. The Respondent has admitted
jurisdiction as alleged in the complaint, and I so find.
Sysco Corporation, headquartered in Houston, Texas, has op-
erations nationwide. The Respondent is one of 11 operating
companies that report to the Sysco Southeast Division, headquar-
tered in Atlanta, where Market President Michael Brawner has
his main office. Brawner provides guidance on best business
practices to the division’s 11 operating companies, two of which
(one in Atlanta, Georgia) have drivers who are union-repre-
sented. Brawner has no responsibility over the day-to-day oper-
ations of the operating companies or direct authority over the Re-
spondent’s employees.
The Respondent’s main or home facility is located in Colum-
bia. It has “domicile” or satellite facilities in leased space in
Charleston, Florence, Greenville, Hilton Head, and Myrtle
Beach, South Carolina; and Augusta, Georgia. During the period
in question, the Respondent’s highest-ranking official was Pres-
ident Troy Barnes; the current president is Tom Propps, to whom
Michael Turner, vice president of operations, reports (see Jt.
Exh. 1, an organizational chart). Turner has responsibility over
the directors/ managers of the warehousing, systems, facilities,
and fleet departments. He and the directors/managers work out
of the Columbia facility.
The Respondent employs about 500 employees and distributes
a wide range of food and beverages and food-related products,
including such items as plates, containers, utensils, and cleaning
chemicals, that customers purchase. Its several thousand cus-
tomers include chain restaurants, college venders, schools, hos-
pitals, nursing homes, and day care centers. Approximately
700,000 pieces of product go through the Columbia distribution
center daily.
Drivers (or transportation employees) work out of Columbia
and all of the satellite locations. Their three classifications are:
(1) route (or delivery) drivers, who drive trucks with trailers con-
taining product for delivery to customers. They have set routes,
which vary daily; (2) shuttle drivers, who move empty trailers to
and from Columbia and domicile facility yards; and (3) specialty
drivers, who make deliveries to customers in small delivery vans
or other vehicles that do not require a commercial driver’s li-
cense.
All mechanics (or fleet technicians) and spotters (or mainte-
nance utility worker technicians) work in the fleet shop in Co-
lumbia. Mechanics perform repairs and preventive maintenance
on tractors and trailers. Their three classifications are fleet tech-
nicians 1 (master), 2 (journeyman), and 3 (apprentice). Spotters
move equipment to be loaded and wash out trailers.
Employees first contacted the Union in approximately April
2016, and on March 15, the Union filed a petition to represent
both drivers and mechanics and spotters (GC Exh. 4). On March
29, the Union filed a new petition, seeking to represent only me-
chanics and spotters (GC Exh. 5). General Counsel’s Exhibit 7
is a joint stipulation as to subsequent events relating to both pe-
titions, which sets out the following (see GC Exhs. 8(a)–(c),
9(a)–(c)).
As to the first petition, the Regional Director (RD) on March
28 approved a stipulated election agreement for a unit consisting
of all three categories of drivers employed at all of the Respond-
ent’s facilities. An election was conducted, in part by mail, with
ballots to be counted on April 28. However, due to the Union’s
filing of the first charges herein, the RD on April 26 ordered the
ballots to be impounded and the petition held in abeyance.
Regarding the second petition, the RD issued a decision and
direction of election on April 21 for a unit of mechanics and spot-
ters, and he scheduled an election on April 27. However, on
April 26, he canceled the election and ordered the petition be
held in abeyance due to the Union’s charges.
The parties stipulated that at the time of the respective elec-
tions, the Respondent employed the following:
(1) 124 route drivers—Columbia—79; Augusta—
7; Charleston—11; Florence—2; Greenville—12;
Hilton Head—5; and Myrtle Beach—8.
(2) 16 shuttle drivers—Columbia—3; Augusta—3; Charles-
ton—2; Florence—1; Greenville—3; Hilton Head—2; and
Myrtle Beach—2.
(3) Five specialty drivers, all at Columbia.
(4) Two master fleet technicians, two fleet mechanics, and four
spotters.
SYSCO COLUMBIA, LLC 7
Management Meetings
By early February, the Respondent was aware of the Union’s
organizing efforts. Thus, President Barnes and/or Vice President
Turner held meetings with employees from February 6–8, using
a script (GC Exh. 19) that presented management’s arguments
against unionization.8
On March 7, management learned that the original petition
had been filed. Thereafter, the Respondent utilized the services
of Kulture Consulting LLC, which advises employers on being
union free, and consultants Ronn English and Peter List partici-
pated in management meetings with employees.
The Respondent conducted approximately six “roundtable”
meetings a week with different groups of employees during the
weeks of March 13 and 20, and from April 10–12 (the “25th hour
meetings”) (see GC Exh. 18), with each week’s meeting having
a different focus and a different script prepared by the Respond-
ent’s counsels. Respondent’s Exhibits 4, 5, and 6 are the scripts
for the 1st week’s meetings, the second week’s meetings, and the
last meetings, respectively. The General Counsel does not aver
that anything said to employees from the scripts themselves went
beyond the bounds of permissible employer campaigning, and I
need not describe their contents in detail.
Brawner had served in management roles with the Respondent
since the operation began in 2002, and he was its president from
2006–2012, before assuming his current position with Sysco
Southeast in Atlanta. At the behest of Sysco Southeast corporate
executives and local management, Brawner addressed employ-
ees at some of first or second round meetings.9 He testified that
he spoke to drivers in each location and that he could not recall
ever having such meetings with drivers in his current position.
Brawner also spoke at all of the 25th hour meetings. There is no
dispute that he did not always follow the scripts.10 The General
Counsel contends that some of his off-script statements violated
the Act.
Supervisors instructed employees to attend these meetings,
even on their scheduled time off (see GC Exh. 32); employees
signed attendance sheets (see GC Exhs. 17(b)); and the Respond-
ent stipulated that they were paid for the time they were at the
meetings. Accordingly, I find that they were mandatory except
for the drivers who were out performing deliveries and could not
attend for that reason.
At the first set of meetings, management introduced the con-
sultants, who made a presentation on voting and collective bar-
gaining, including showing PowerPoint slides. At the second set
of meetings, the focus was an election update, including a review
of election procedures and reasons why the drivers should vote
against representation. Employees were shown a slide or Pow-
erPoint comparison of the Company’s pay and benefits vis-à-vis
Sysco Atlanta’s unionized drivers.
Almetrice (Kema) Weldon, head of human resources, or a su-
pervisor opened the 25th hour meetings and reviewed in detail
the mechanics of the upcoming election, as well as urged a “no”

8 Contradicting Turner’s testimony that he became familiar with the
Union after the petition was filed on March 7.
9 The record is unclear on which set Brawner attended, but the matter
is immaterial.
vote. Brawner then spoke prior to the presentation of a video or
DVD (see R. Exh. 6 at 3–5), which was also mailed to employ-
ees’ homes. The only portion of the video that the General Coun-
sel contends unlawful is the following, regarding the conse-
quences of voting in the Union (GC Exh. 6 at 23):
And even if you didn’t pay dues or didn’t support the union,
your wages and benefits would still be frozen at the status quo,
during the possible months or years of negotiations.
At these meetings, employees brought up issues and concerns
and asked Brawner questions, as reflected by the testimony of
Supervisor Buster, diver Shannon, and several other drivers.
Subjects included pay and driver routes. Brawner talked about
matters outside the scope of the script, such as the balance be-
tween sales and delivery, saying that he was going to put his
boots on, and asking employees to give him 12 months and he
would fix things; if not, they could bring in a union.
Thus, Drivers Bacon (a witness for the Respondent), Brewer,
Gates, and Hughes at Columbia; Gruber, Otto, and Taylor at
Charleston; and LaCount at Hilton Head all testified—as did
English—that Brawner asked them to give him 12 months or a
year to turn things around or fix things. Similarly, both Me-
chanic Anderson and Spotter Nuttry testified that Brawner asked
employees to give him 6 months to a year. Many of them also
confirmed that Brawner made statements regarding his prior his-
tory with the Company and that he wished to restore the family
atmosphere that had once existed. In this regard, Supervisor
Buster testified that Brawner asked drivers at Myrtle Beach to
give him a chance, saying that he was from Columbia, had
worked for Sysco Columbia as president, and that it was his baby
and he wanted to take care of it.
Some employee witnesses testified that Brawner stated that he
would look into improving pay, supervision, and other benefits.
None of them averred that Brawner made any specific promises,
with the possible exception of Shuttle Driver Perisee, who testi-
fied that when Driver Shanning asked if the Company could
guarantee shuttle drivers a 40-hour workweek, Brawner re-
sponded, “We can do that.”11 Aside from the issue of whether
that amounted to a “promise,” Shanning and Mayers, who at-
tended the same meeting, testified that Brawner never promised
such a guarantee. I find more plausible Shanning’s account—
consistent with other statements attributed to Brawner—that
Brawner replied that he would look into that.
Brawner conceded on 611(c) examination that he told em-
ployees that he could influence their relationship with manage-
ment and, “I asked them to give me a year to help influence the
processes, relationships, those type[sic] things within the com-
pany, as is my responsibility.”12 To the extent that he denied or
testified that he did not recall making other statements attributed
to him by the above employee witnesses or contained in the fol-
lowing tape recording, I do not credit him.
General Counsel’s Exhibit 16 is a tape recording made at one
of the 25th hour meetings with Columbia drivers. Relevant
10 Consultant English at, inter alia, Tr. 627; see also Supervisor Buster
at Tr. 868, 871. English confirmed that Brawner made some of the off-
script statements that employees attributed to him.
11 Tr. 260.
12 Tr. 743.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
portions of the certified transcript thereof (GC Exh. 6) follow.
Brawner stated that he had learned from drivers of issues that
had arisen since he left, in particular that the Company had be-
come “sales run,” with the result that drivers had too many small
stops. He went on to say that he could “affect” a change therein
but the Union could not (ibid at 12–13).
He then talked, inter alia, about his history with the Company
and that it had been a great family before he left 5 years ago;
South Carolina being a nonunion State attractive to large corpo-
rations; and that he was coming back “to get the family back to-
gether, and I can’t do it with a union. . . .” (ibid. at 14–15). He
apologized for the company “falling off the side of the hill” and
stated:
I’m asking you for your support. And give me 12 months;
that’s all I need. Give me 12 months. You vote a union in, I
can’t help you. You vote no, I can get involved. I can put my
boots on. . . . (ibid at15)
After the DVD was played, Brawner resumed speaking. He
stated that he could affect the drivers’ working conditions and
“can have a lot of influence” (ibid. at 39) but that if a union was
voted in, having a third party would limit and restrict what he
could do. He further said:
[A]ll I’m asking you is give me 12 months. If this company
could give me 12 months and I could get a no vote, I can put
my boots on, and I can go affect a lot of things. . . . And it’ll be
things that affect your daily jobs. . . . I feel like if I’m given the
opportunity, I can have a major impact on where we work. . . .
(ibid at 40)
In his concluding remarks, he repeated what he could do if given
12 months. The tape recording contains no questions from driv-
ers, but this does not invalidate the consistent and credited testi-
mony of numerous drivers and Supervisor Buster that employees
asked questions of Brawner at other meetings.
Brawner’s One-on-One Conversations
By a March 8, 2018 email, the General Counsel notified the
Respondent’s counsels that he would be moving to amend para-
graph 7 of the complaint (relating to Brawner’s statements at
group meetings) to add a paragraph 7(f): “About early April
2017, by telephone.” Two employees testified about telephone
conversations with Brawner.
The Respondent has objected to the amendment (see R. Br. at
50), contending that such conversations should not be considered
because they went beyond the scope of the complaint and were
time barred under Section 10(b) of the Act.
Section 102.17 of the Board’s Rules authorizes a judge to
grant complaint amendments “upon such terms as may be
deemed just” during or after the hearing until the case has been
transferred to the Board. See Folsom Ready Mix, Inc., 338
NLRB 1172, 1172 fn. 1 (2003). The judge should consider
whether: (1) there were as surprise or lack of notice; (2) there
was a valid excuse for the delay in moving to amend; and (3)
whether the matter was fully litigated. Rogan Bros. Sanitation,
Inc., 362 NLRB 547, 549 fn. 8 (2015), enfd. 651 Fed.Appx. 34
(2d Cir. 2016). Here, the new allegation concerned the same in-
dividual (Brawner), the same alleged violations, and was in the
same time frame as existing allegations. Furthermore, defending
against it did not require anything more than Brawner’s testi-
mony. Accordingly, allowing the amendment was not prejudi-
cial to the Respondent.
Four employees testified about one-on-one conversations that
they had with Brawner. The General Counsel never moved to
amend the complaint to add them as allegations, and the Re-
spondent avers that they should not be considered because they
are also outside the scope of the complaint (R. Br. at 50). None-
theless, it is well settled that the Board may find and remedy a
violation even in the absence of a specific allegation in the com-
plaint if the issue is closely connected to the subject matter of the
complaint and has been fully litigated. Mesiner Electric, Inc.,
316 NLRB 597, 597 (1995), affd. mem. 83 F.3d 436 (11th Cir.
1996); Pergament United Sales, 296 NLRB 333, 334 (1989). In
Mesiner, ibid., the Board majority expressly rejected the dis-
sent’s position that the General Counsel had an affirmative obli-
gation to move to amend the complaint. Here, as with the
amendment above, the one-on-one meetings involved the same
management representative, the same time frame, and the same
kinds of statements as the allegations in the complaint. There-
fore, they can properly be addressed. I now turn to the phone
calls and individual meetings that Brawner had with employees.
In March, Brawner approached Driver John “Jackie” Gruber
in the Charleston yard in the afternoon. He asked how Gruber
and his family were doing, and Gruber replied fine. Brawner
then asked what had happened in the past 5 years that he had
been gone. Gruber responded that a lot had changed since
Brawner had left and that many drivers were very unhappy be-
cause pay had gone down and the work load had gone up.
Brawner either did not respond or replied that he could not be-
lieve what Gruber was telling him.
At some point prior to the election, Columbia Driver John Por-
ter was at home in the evening when he had a phone conversation
with Brawner. He could not recall who initiated the call.
Brawner asked how he was doing and then asked where he stood
with Sysco. Porter said he would rather keep it to himself unless
they could talk man-to-man. Brawner replied that they could.
Porter complained about the supervisory team, and Brawner re-
plied that he did not know it had gotten that bad. Porter brought
up the drivers not getting raises, which they had received regu-
larly in the past. The conversation then switched to casual sub-
jects.
In approximately April, Driver Joshua Taylor was in the
Charleston yard in the late afternoon when Brawner approached
and introduced himself. He asked Taylor about what he did and
if everything was okay, saying that he did not understand how
things had gotten to where they were. Taylor responded that
many drivers were unhappy with their routes and that supervi-
sors’ inaccessibility indicated a lack of concern for their prob-
lems. Brawner stated that he was going to have to start coming
down more, that he had had a great relationship with the drivers
when he was president, and that he hoped Taylor would give him
a chance. He asked for 12 months to change things and, if not,
he would personally call the Union. He also said that if the Un-
ion was brought in, this could hurt the Company’s relationship
with customers and its business. The conversation lasted about
10 minutes.
SYSCO COLUMBIA, LLC 9
In approximately late March or early April, a coworker told
Florence Driver Patrick Windham that Brawner wanted to talk
to him. Windham called Brawner, in the presence of Jason
Knotts, the other Florence driver. Brawner introduced himself.
He expressed concern over whether the Florence yard had any
problems that he could work out for them. Brawner assured
them that he would do what he could to make things better for
them if they had problems. The call lasted for 30–35 minutes.
Brawner called him a week or 2 later. Knotts was again present.
Brawner stated that he was letting Windham know that he
wanted to check on them. Windham replied that they were good.
In mid-April, Fleet Maintenance Supervisor Drafts ap-
proached Mechanic Robert Anderson in his work bay and told
him to go to the office of Duane McCloud, fleet maintenance
manager. There, Anderson met with Brawner for about 30–40
minutes, with the door closed. Brawner started with pleasantries
and then asked if the employees could give him a chance to try
to fix the problems. Anderson asked where they were 5 years
ago, and Brawner replied that they were there now. Brawner
stated that if the Teamsters came in, employees would be put in
the status quo, and nothing could be improved or done for at least
9 months to at least 3–4 years.
In approximately the third week of April (after the 25th hour
meetings but before the election), another employee told Spotter
Carlos Nuttry to see Brawner in McCloud’s office in the evening.
There, Brawner stated that he knew who Nuttry was and asked if
he remembered how things were when Brawner was the presi-
dent. Brawner discussed insurance coverage and assured Nuttry
that things would get better. He asked if Nuttry had anything to
say or any questions, and Nuttry replied no. Brawner said to give
him 6 months to a year, and if things did not improve, the Com-
pany would call the union representatives to come back and talk
to the employees.
Fix as a Supervisor and the Change in Parking
Fix was a master technician for 6–7 years before being pro-
moted to fleet maintenance supervisor on March 27. Prior to his
promotion, he had conversations about working conditions with
coworkers and was a union supporter.
In approximately November 2016, Fleet Maintenance Super-
visor Drafts formally announced his retirement, effective in
May, and the Respondent posted the job in December. Respond-
ent’s Exhibit 16 was the job description in effect.
There can be no question that its listed responsibilities over
associates (employees) made it a supervisory position within the
meaning of Section 2(11). These included, inter alia, supervising
their daily work and safety; supervising labor hours and prepar-
ing work schedules; performing management functions of staff
selection, development, discipline, performance reviews and/or
terminations; and making recommendations for disciplinary ac-
tion and/or behavior modification when required.
The interview process began in January and was completed in
February. Fix was one of the applicants, and Turner made the
decision to select him in about early March. At around that time,
management knew that Kiko Rivera, the fleet shop clerk, also
would be retiring in May.

13 Turner at 928, et. seq.
On March 27, Fix was given a formal offer (GC Exh. 22,
sealed by agreement of the parties), to be effective the following
Monday, and he immediately accepted. As of Monday, March
30, he changed from being hourly paid to salaried. Almost im-
mediately, he got a company email and access to the Company’s
software programs.
During the period from March 30 to May 11, Fix was a super-
visor-in-training, learning from Drafts, McCloud, and Rivera the
complexities of the administrative responsibilities and computer
technology required of his new position. This included training
on scheduling work, coaching employees, and writing perfor-
mance reviews, primarily by McCloud.13 A March 31 email
from Drafts to Len Bolduc, supervisor of p.m. operations, stated
that Fix was taking over from him and handling things and that
Draft would be there until May 11 training him (GC Exh. 24a).
Other emails reflect that in April, Fix participated in interviews
for the fleet technician apprentice position (GC Exhs. 29–31).
The Respondent did not include Fix as an employee employed
during the payroll period ending April 8, for purposes of eligi-
bility to vote in the upcoming election (see GC Exh. 9(a)).
Fix had worked the third shift but changed his hours to inter-
face with Drafts and Rivera for training. Although Fix continued
to wear a mechanic’s uniform, he no longer performed a me-
chanic’s duties. At times, he used Drafts’ office, a cubicle in an
open area; by early April, Drafts had already started removing
his personal items from the office.
On about April 1, Fix had a one-on-one meeting with me-
chanic Christopher Bookert in Drafts’ office. Fix started by say-
ing that the technicians were underpaid. He showed Bookert a
document regarding pay scales and said he was sharing what he
found out. He asked to be given an opportunity to try to resolve
some of the issues and fix the situation (make sure that techni-
cians were properly paid based upon their grades). The conver-
sation lasted about 20–30 minutes. Bookert considered him a
supervisor at the time.
Prior to about mid-April, fleet shop employees parked their
vehicles in the parking lot in front of the main building and had
to go through the warehouse to get to the fleet shop. Bookert
sometimes parked by the fence in the back lot when weather was
bad, but McCloud told him that he could not do so. Spotter
Nuttry characterized parking in the back as “way better” because
it was closer to their work area and of benefit in bad weather and
when an employee was running late.14
In about mid-April, Fix held a meeting with the four spotters,
including Nuttry, in the fleet shop break room at about 5 p.m.
That week, Nuttry did not see Fix with Drafts, and Fix ran the
fleet, assigned who had to fill in for another spotter, and handled
paperwork. At the meeting, Fix started by saying he was having
the meeting to see what could be worked out and asked what was
bothering them as far as issues that they wanted to bring up. He
wrote down what they told him. One of the items that they raised
was the location of parking for mechanics and spotters.
Later that day, Fix asked Turner if fleet shop employees could
park in the back, closer to their work area, saying that it would
be a good idea because they had “been stomping across the front
parking lot, going through the warehouse, going all the way
14 Tr. 389–390.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
through the back of the shop,” which was more of a burden to
them on rainy days.15 Turner agreed. The next day—the day
following his meeting with the spotters—Fix announced to me-
chanics and spotters that they could do so. Mechanic Anderson
was in his work area when Fix came by and announced it to him
as “some good news.”16
In mid-April, Fix had a 25–30-minute conversation with An-
derson in Anderson’s bay work area in the late afternoon. Fix
stated that he was new to the position (of supervisor) and wanted
a chance to have an impact. He asked if Anderson was happy
with everything and stated that if Anderson rescinded his posi-
tion, it would help speed things up on getting pay increases and
items fixed around the facility. He showed Anderson a picture
of an email that had pay scales for mechanics at another Sysco
location. Fix then stated that if the employees rescinded their
position, it would be faster and easier for him to put that into
place and that Anderson could get an increase of between $2 and
$5 an hour. Fix said that if they voted the Union in, his hands
would be tied, everything would be frozen, and they would be
put in status quo; if they voted “no,” he could “speed things up
on getting . . . stuff fixed.”17
Employees’ Compensation
Route drivers are compensated through an incentive program
called DIP (driver incentive program), which has a an hourly de-
fault rate or floor plus incentives based on the Company’s eval-
uation of their performance in carrying out various activities,
which are measured against a grid (see R. Exh. 17, an example).
Activity-based compensation is always higher than the hourly
default rate, and most drivers receive all of their compensation
through the incentives; exceptions are new drivers, drivers who
use sick leave hours (paid at base rate), and drivers who take va-
cation (whose pay is calculated based on their previous year’s
earnings). Shuttle drivers and specialty drivers are paid at an
hourly rate.
Mechanics are paid an hourly rate but may get pay increases
based on their achieving additional mechanical certificates or
their annual performance appraisals. Spotters are hourly paid.
Turner testified that in years past, across-the-board increases
were given by the Respondent’s Southeast Division based on the
Company’s performance the previous year and compensation
paid by competitors in the market. Since March 2017, the Re-
spondent has maintained the status quo as far as compensation to
drivers and to mechanics and spotters.
The following summarizes changes made in employees’ com-
pensation in prior years (reflected in Jt. Exhs. 5–19; R. Exhs. 19–
39; see also R. Br. at 16, 21). Changes for each new fiscal year
(FY) for drivers became effective in July; for example, FY 2011
rates became effective on July 4, 2010. Rates are per hour unless
otherwise indicated.
Drivers
FY 2011—The rate for route drivers went up from $21.95 to
$22.60; shuttle drivers from $22.17 to $22.83.

15 Testimony of Turner at Tr. 942–943, which I credit over Fix’s tes-
timony that he asked Brawner. Turner’s account was more detailed than
Fix’s, and it is more plausible that Fix would have gone to Turner, who
was in his direct line of supervision.
FY 2012—The Company converted to the DIP compensation
system for both route and shuttle drivers. The base default rates
remained the same. In addition, they would receive $35/week if
they achieved certain levels of performance in scanning barcodes
(STS incentive).
FY 2013—Drivers’ pay rates remained unchanged. The STS
incentive was replaced by a $60/week drive cam incentive for
good driving.
FY 2014—Drivers’ base default rates were unchanged, but
they received a 1.5 percent increase in DIP rates for various
tasks. Specialty or fish van drivers (whose classification was
created during FY 2013) received a pay increase of $.60 to
$12.60.
In April 2014, the DIP system for route drivers was modified
(DIP fusion), with the default or base rate becoming a floor or
minimum rate. Shuttle drivers were returned to a base hourly
rate, which was increased.
FY 2015 (effective October 1, 2014)—the base rate for cur-
rent or “grandfathered” route drivers increased to $23.05, new
route drivers went up from $15 to $20, and shuttle drivers went
up from $23.20 to $23.55.18
FY 2016—route drivers’ base and incentive rates remained
unchanged, but they received a $1,000 lump sum bonus; shuttle
drivers’ base rate was increased to $24.02; and specialty drivers
went up to $14.07.
FY 2017—new route drivers’ base rate went up to $21;
“grandfathered” route drivers remained at $23.050, but the grid
rate increased from $27 to $27.30. Shuttle drivers went to
$24.27, and specialty drivers to $14.32. In addition, a $500 an-
nual safety bonus was introduced, payable in December 2017 for
being accident free in calendar year 2017.
Mechanics and Spotters
For FYs 2011 and 2012, mechanics and spotters received
hourly pay increases. In FYs 2013, 2014, and 2015, all classifi-
cation but p.m. mechanic trainee received increases. The in-
creases were effective September 1 of the calendar year.
For FY 2016 (R. Exh. 38), a new model was used, with merit
increases based on performance ratings (below, on, above, or
significantly above target). The positions were for the particular
employees who encumbered them. The base line was increased
for all categories. The same model was used for wage adjust-
ments in FY 2017.
September 25 Letter and Withholding of Wage Adjustments
On September 25, the Respondent mailed and delivered a
letter, signed by Turner and Weldon, to drivers and to me-
chanics and spotters. It stated that in response to employee
inquiries, the Company was unable to make wage adjust-
ments that “would typically be made in September” be-
cause the Company was required by law to maintain the
status quo until the Union’s pending petitions and unfair
labor practice charges were resolved (GC Exh. 3).
16 Tr. 484.
17 Tr. 466–467.
18 At some point, they had gone up to $23.20.
SYSCO COLUMBIA, LLC 11
Warehouse employees received wage adjustments effec-
tive September 3 (GC Exh. 13); drivers and mechanics and
spotters did not.
Respondent’s “Open Door” Policy
Weldon testified about the various means by which manage-
ment has encouraged all employees to communicate their con-
cerns:
(1) The open door policy contained in the 2015 handbook that
is still in effect (R. Exh. 40).
(2) The PAR (Positive Associate Relations Program) that was
started in around September or October 2016, as part of which
daily dialogue conversations of issues raised by employees are
logged by their supervisors, and tracked on an ongoing basis
for resolution (see R. Exh. 41).
(3) Ethics Hotline.
Transportation Director Bogene (Bo) Nash oversees the deliv-
ery operation and 6 supervisors and 143 drivers. He testified that
very soon after he came to Columbia, he instituted the “fix one
thing” procedure, encouraging drivers to report to him daily an-
ything that they feel needs fixing or improving, including issues
or complaints concerning their routes (see R. Exhs. 9–15, exam-
ples), which he forwards to the appropriate supervisors or rout-
ers. After about 6 months at Columbia, he also created a load
condition hotline for drivers to call as an alternative to writing
down their issues. Routing issues impact drivers’ working con-
ditions and/or effective rate of pay.
Analysis and Conclusions
Fix’s Status in Mid-April
Section 2(11) of the Act defines a “supervisor” as an individ-
ual who possesses the authority in the interest of the employer,
to use independent judgment in exercising or effectively recom-
mending any one of 12 enumerated indicia, including disciplin-
ing, assigning, and responsibility directing employees. The party
asserting supervisory authority has the burden to prove it by a
preponderance of the evidence. Veolia Transportation Services,
Inc., 363 NLRB No. 98, slip op. at 8 (2016); Oakwood
Healthcare, Inc., 348 NLRB 686, 694 (2006).
There is no dispute that the Fleet Maintenance Supervisor po-
sition which Fix encumbered in mid-April was supervisory
within the meaning of Section 2(11), conferring authority to, in-
ter alia, assign, direct, evaluate, and discipline employees. The
Respondent argues that at the time (and until Drafts retired on
May 11), Fix was only a supervisor-in-training without any ac-
tual supervisory authority. However, possession of authority
consistent with any of the indicia is sufficient to establish super-
visory authority even if such authority has not been exercised.
Avante at Wilson, Inc., 348 NLRB (2006), citing Pepsi-Cola Co.,
327 NLRB 1062, 1063 (1999); Fred Meyer Alaska, Inc., 334
NLRB 646, 649 fn. 8 (2001).
In any event, by mid-April Fix was engaged exclusively in
performing or being trained in administrative/supervisory

19 For cases cited in the Respondent’s brief, I am using the accurate
page numbers on which they appear in the body of the brief, as opposed
to the table of authorities.
functions and no longer performed any rank-and-file work. He
was learning how to write employees’ performance appraisals
and participated in interviewing applicants for employment; had
changed his work hours in order to interact with outgoing Super-
visor Drafts and Clerk Kiko; used Draft’s office; and, on his own,
performed Draft’s functions in Draft’s absence, including direct-
ing spotters when to fill in for other spotters. Other than contin-
uing to wear a mechanic’s uniform, his role as a mechanic had
ended. The General Counsel notes (GC Br. at 42) Respondent’s
omission of Fix from the list of eligible voters. I find this was
an implicit concession that at least by April 8, the Respondent
considered him promoted out of the unit and into a supervisory
position.
Based on the above, I conclude that in mid-April, Fix had au-
thority to perform various indicia of supervisory authority and
did exercise, inter alia, the authority to assign and direct employ-
ees. That Drafts continued to perform supervisory and adminis-
trative functions during that period does not dictate a contrary
result. Having two supervisors simultaneously supervise a group
of employees is not inherently illogical or contradictory, and the
Respondent produced no evidence that it has a policy prohibiting
dual supervision of a department.
The Respondent cites (R. Br. at 6419) Bredero Shaw, 345
NLRB 782 (2005), for the proposition that “supervisors in train-
ing” such as Fix are not 2(11) supervisors. Such reliance is mis-
placed. Therein, the “supervisor in training” in question was
never formally promoted to a supervisory position and, although
he might have performed supervisory functions earlier, the
Board concluded that he no longer exercised any by the time of
the election. Thus, at that time, his direction of employees was
determined by how his supervisor directed him, not by his inde-
pendent judgment, and his preparation of the work schedule was
based on set established factors that did not entail exercising in-
dependent judgment. Accordingly, the Board overruled the chal-
lenge to his ballot.
Because I have found that Fix had actual supervisory author-
ity, I need not determine whether he possessed at least apparent
supervisory authority. However, I do note that in the two one-
on-one conversations with mechanics (one in Draft’s office) and
the group meeting that Fix had with spotters, Fix held himself
out as a representative of management, asked employees their
concerns, and stated that he would try to work them out. Fur-
thermore, the day after spotters complained to him about their
having to park in the front lot, Fix notified them that manage-
ment had approved their parking in the back lot, effective imme-
diately.
Change in Parking
An employer violates Section 8 of the Act by conferring em-
ployee benefits while a representation election is pending if the
purpose is to induce employees to vote against the union. NLRB
v. Exchange Parts Co., 375 U.S. 405, 406 (1964); Vista Del Sol
Healthcare, 363 NLRB No. 135, slip op. at 1 fn. 2 (2016). See
also Medo Photo Supply Corp. v. NLRB, 321 U.S. 678, 686
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
(1944). The burden is on the employer to show a legitimate busi-
ness reason for the timing of a grant of benefits during an organ-
izing campaign, or the Board will infer improper motive. Yale
New Haven Hospital, 309 NLRB 363, 366 (1992); see also Kan-
awha Stone Co., 334 NLRB 235, 235 fn. 2 (2001).
Unquestionably, both employees and Fix viewed the change
in parking location for the mechanics and spotters in mid-April,
from the front lot to the back lot, as a benefit: (1) employees told
Fix that the parking situation was one of the issues “bothering
them;” (2) Fix told Turner that the employees would like to park
closer to their work area, especially on rainy days; (3) Fix an-
nounced the change to Anderson as “good news; and (4) the tes-
timony of Bookert and Nuttry.
Furthermore, the change was designed to diminish employee
support for the Union. Indeed, just 1 day before Fix announced
the change, and 2 days before it went into effect, Fix solicited
grievances, one of which was the parking situation. That same
day, Fix suggested to Turner that mechanics and spotters be al-
lowed to park in the back, closer to their work area. At around
this same time, Fix made statements to Anderson in violation of
Section 8(a)(1), as discussed below. Against this backdrop of
unlawful motive, the Respondent has not offered any legitimate
business purpose for the timing of the benefit.
The Respondent argues that the change did not provide the
mechanics and spotters with any parking advantage or benefit
over other employees because they still had to walk at least as
far as other employees (R. Br. at 72–73). This is irrelevant be-
cause the proper focus of the inquiry is whether the change was
an improvement or benefit to the mechanics and spotters, not
how their changed parking arrangement compared with other
employees.
The Respondent contends that the Board’s reasoning in Berk-
shire Nursing Home, LLC, 345 NLRB 220, 221 (2005), should
apply here (R. Br. at 73–74). In that case, the employer increased
the employees’ parking distance so that they had a 3 to 5-minute
walk instead of a 1-minute walk. The Board found this differ-
ence to be a “relatively minor inconvenience to the employees,”
insufficient to warrant imposing on the employer a duty to bar-
gain before making the change. However, I find Berkshire inap-
posite inasmuch as it involved a unilateral change, unlike the sit-
uation here, where the Respondent conferred a benefit that could
impact the outcome of a pending election.
Accordingly, I conclude that the Respondent violated Section
8(a)(3) and (1) by conferring a parking benefit on mechanics and
spotters in mid-April to discourage them from voting for the Un-
ion.
DVD
The General Counsel contends that the following portion of
the video played at the 25th hour meetings, regarding the conse-
quences of voting for the Union, was unlawful:
And even if you didn’t pay dues or didn’t support the union,
your wages and benefits would still be frozen at the status quo,
during the possible months or years of negotiations.
Here, going back to at least FY 2011, the Respondent has had
a fairly consistent practice of giving annual pay increases to driv-
ers and to mechanics and spotters. This is reflected in the
Company’s September 25 letter to employees, which stated that
wage adjustments “would typically be made in September.”
An employer’s statement that wages will be frozen until a col-
lective-bargaining agreement is signed violates Section 8(a)(1)
of the Act if the employer has a past practice of granting periodic
wages increases. Jensen Enterprises, Inc., 339 NLRB 877, 878
(2010), citing, inter alia, Illiana Transit Corp., 323 NLRB 111,
113–114 (1997), and More Truck Lines, 336 NLRB 772, 773–
775 (2001), enfd. 324 F.3d 735 (D.C. 2003). The Board rea-
soned that following its employees’ selection of an exclusive
bargaining representative, an employer may not unilaterally dis-
continue a practice of granting periodic wage increases, and that
such a statement suggests that the employer intends to unilater-
ally take away benefits and require the union to negotiate to get
them back. See also, DHL Express, Inc., 355 NLRB 1399, 1399
(2010) (employer gave no assurances that the status quo of grant-
ing scheduled wage increases would continue during contract ne-
gotiations).
Mantrose-Hauser Co., 306 NLRB 377 (1992), cited by the
Respondent (R. Br. at 36) does not dictate a contrary result. In
that case, the Board construed a statement that “wage and benefit
programs” would ”typically remain frozen” during bargaining as
implying that past practices, including granting predetermined
wage increases, would continue. The Board further concluded
that the qualifier “typically” reduced the possibility that employ-
ees would reasonably perceive the statement as a threat of loss
of wages and benefits. No such qualifier was used here; instead,
the language was “would be.”
Accordingly, I conclude that the above passage in the video
violated Section 8(a)(1) of the Act.
Solicitation of Grievances/Promise of Benefits
As an initial matter, I reject out of hand the Respondent’s ar-
gument (R. Br. at 40–41) that Brawner was not employed by the
Respondent and had no authority to effectuate any promises, and
that no employee would reasonably have construed his com-
ments as representing promises by the Respondent. Firstly, the
Respondent’s status as an operating entity reporting to Sysco
Southeast cannot be ignored, and in the corporate structure,
Brawner occupied a higher position than the Respondent’s pres-
ident, Troy Barnes. Secondly, by Brawner’s own account, cor-
porate and local management asked him to address employees at
the 25th hour meetings. Thirdly, the statements that Brawner
made reasonably gave employees the impression that he could
influence management decisions relating to their wages, bene-
fits, and working conditions.
As the Supreme Court stated in NLRB v. Gissel Packing Co.,
395 U.S. 575, 618 (1969) (quoting from Section 8(c) of the Act),
employers can communicate to their employees their general
views about unionism or specific views about a particular union,
so long as the communications do not contain “a threat of force
or promise of benefit.”
The Board has recognized that “generalized expressions of an
employer’s desire to make things better have long been held to
be within the limits of campaign propaganda.” MacDonald Ma-
chinery Co., 335 NLRB 319, 319 (2001). Such statements can
be distinguished from promises of improvements in specific
terms and conditions of employment. See KAG-West, LLC, 362
SYSCO COLUMBIA, LLC 13
NLRB 981, 981 fn. 1 (2015); Purple Communications, Inc., 361
NLRB 575, 578 (2014).
The most recent Board decision on implied promises is Frank-
lin Prepatory Academy, 366 NLRB No. 67 slip op. at 1 fn. 3
(2018). Therein, the Board found that a manager’s statement that
“[i]f I haven’t done what I say we can do, another Union election
can be held in 366 days” did not constitute an implicit promise
of benefits:
The statement does not promise that anything in particular will
happen, and it was not accompanied by any request to air spe-
cific concerns or any other promises or grant of specific bene-
fits. Under these circumstances, we find that the statement is
merelya generalized request for more time and thus falls within
the limits of permissible campaign propaganda. Cf. Noah’s
New York Bagels, 324 NRB 266, 267 (1997).
See also Newburg Eggs, Inc., 357 NLRB 2191, 2193 (2011)
(“[G]ive me one more chance” not unlawful); National Micro-
netics, Inc., 277 NLRB 993, 993 (1985) (employer’s generalized
request for “another chance” and “more time” did not violate
Section 8(a)(1)).
Those cases are distinguishable from those where the em-
ployer’s request for more time speaks of providing a specific
benefit, such as raises, if the employees reject unionization (see
Tampa Electric Co., 364 NLRB No. 124 (2016); Valerie Manor,
Inc., 354 NLRB 1306, 1310 (2007)), or where the statement
promises to deliver, following earlier references to specific ben-
efits that the employer already bestowed. See Reno Hilton Re-
sorts Corp., 319 NLRB 1154, 1156 (1995). In those situations,
the Board finds violations.
Fundamentally, statements found to be lawful are not in the
context of solicitation of employee grievances or complaints. As
to express or implied promises in conjunction with the solicita-
tion of grievances, the Board stated in Traction Wholesale Cen-
ter Co., 328 NLRB 1058, 1058 (1999), citing Reliance Electric
Co., 191 NLRB 44, 46 (1971), enfd. 457 F.2d 503 (6th Cir.
1972):
When an employer undertakes to solicit employee grievances
during an organizational campaign, there is a “compelling in-
ference,” which the Board can make, that the employer is im-
plicitly promising to correct the grievances and thereby influ-
ence employees to vote against union representation. Such
conduct violates the Act.
In connection with the solicitation of grievances, a statement
indicating that the employer is “looking into” making changes
desired by employees indicates that action is being contemplated
and constitutes an implied promise of improvements. Purple
Communications, above, at 578 (2014); see also Auto Nation,
Inc., 360 NLRB 1298, 1299 (2014).
This inference is “particularly compelling” when, prior to the
union’s organizing campaign, the employer has not had a previ-
ous practice of soliciting grievances. Garda CL Great Lakes,
Inc., 359 NLRB 1334, 1334 (2013), citing Amptech, Inc., 342
NLRB 1131, 1137 (2004), enfd. 165 Fed. App. 435 (6th Cir.
2006).
Before proceeding further, I will first address the Respond-
ent’s argument (R. Br. at 55, et. seq.) that the Respondent’s
“open door” policies undercut the inference that any solicitations
and grievances here were improper. Such argument is not per-
suasive.
In contrast to the existing general policy of encouraging em-
ployees to voluntarily contact management on their own volition
to report issues, any solicitation by Brawner occurred at specially
called mandatory meetings or in the one-on-one conversations
that he initiated with employees shortly before the elections. Im-
portantly, Brawner was a very high-level Sysco official—with
authority over Sysco Columbia’s president—and there is no ev-
idence that had ever before conducted either group or individual
meetings with the employees for whom the Union had peti-
tioned. Thus, his communications with the employees were
highly out of the ordinary.
First addressing Brawner’s off-script statements, the 25th
hour meetings concerned the upcoming elections. Although
Brawner made no specific promises, he referenced specific com-
plaints that employees had previously raised to him about their
pay and working conditions, and he encouraged employees to
bring up and discuss their issues at the meetings. Even aside
from the testimony of the employees who had one-to-one con-
versations with him, it is inconceivable that drivers would have
raised complaints to Brawner—a high-level corporate execu-
tive—had he not solicited them.
Seen in that context, Brawner’s repeated statements that he
could “affect a lot of things” or “make it right” were enmeshed
with his solicitation of employees’ complaints, thereby making
them impermissible under Purple Communications and Auto Na-
tion, above. Based on this conclusion, I need not decide whether,
in the alternative, Brawner’s statements were improper because
of their connection to specific employee concerns.
In the time frame of the group meetings, Brawner had individ-
ual conversations with six employee witnesses; four drivers, one
mechanic, and one spotter. From their depictions of those con-
versations, Brawner either directly or indirectly solicited their
complaints and made implied promises of improved benefits.
Thus, Windham testified that Brawner expressly asked about the
problems at the Florence yard and said that he would do what he
could do make things better for them if they had problems. As to
other employees, some of them complained about their supervi-
sors and pay, and I highly doubt that they would have sua sponte
done so. I note Taylor’s testimony that Brawner asked for 12
months to change things, as he did at the 25th hour meetings. I
further note Nuttry’s testimony that Brawner brought up insur-
ance coverage and assured Nuttry that things would get better.
Therefore, I conclude that Brawner violated Section 8(a)(1)
by soliciting grievances and promising benefits at the Com-
pany’s preelection meeting with employees and in one-on-one
conversations with them.
Turning to Fix, I previously stated my belief that he, as a
newly-made first-level supervisor, would not have initiated the
mid-April conversations that he had with at least two of the four
mechanics and with all four spotters in a group, absent manage-
ment’s approval. Notably, he said, expressly or implicitly, that
he was speaking on behalf of the Company, and the contents of
his conversations were very similar to what Brawner told indi-
vidual employees, as well as to Brawner’s off-script statements
at the 25th hour meetings. These factors lead me to believe that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Fix was given at least loose guidelines or instructions on what to
say.
As to Fix’s conversations, Fix asked Bookert to give him an
opportunity to resolve a specific issue, pay. In Fix’s group meet-
ing with the spotters, he directly asked what was bothering them
as far as issues, and he wrote down what they said. One of their
complaints was parking, which Fix told them the next day had
been changed. In Fix’s one-on-one meeting with Anderson, he
asked if Anderson was happy with everything and stated that if
Anderson rescinded his position and employees voted “no,” it
would help speed things up on getting pay increases and items
fixed around the facility. Fix further stated that if they voted in
the Union, his hands would be tied, everything would be frozen,
and employees would be put in status quo.
By the above conduct, Fix violated Section 8(a)(1) by (a) un-
lawfully soliciting grievances; (b) promising benefits if the em-
ployees rejected the Union; and (c) threatening that employees’
pay and other benefits would be frozen at the status quo if they
voted for the Union. See the cases I previously cited with regard
to the DVD and to Brawner’s statements.
Fix did not blame the Union for employees not getting wage
increases, and that allegation has not been sustained. The other
two allegations—(a) interrogated employees about the impact of
the Respondent’s promises to gauge their level of support for the
Union; and (b) suggested that employees rescind the election
process—are essentially subsumed by the allegations that I have
found meritorious and are therefore redundant.
September 25 Letter
The letter stated that the Company was unable to make wage
adjustments typically made in September because the Company
was required by law to maintain the status quo until the Union’s
pending petitions and unfair labor practice charges were re-
solved.
An employer may lawfully postpone making an improvement
if it is uncertain whether it can sustain its burden of proving that
the improvement was given free from union considerations pro-
vided that it makes clear (1) the improvements will be granted
whether or not the employees select a union, and (2) the sole
purpose of the postponement is to avoid the appearance of at-
tempting to influence the election. Woodcrest Health Care Cen-
ter, 366 NLRB No.70, slip op. at 5 fn. 11 (2018), citing, inter
alia, Kauai Coconut Beach Resort, 317 NLRB 996, 997 (1995),
and Uaraco, Inc.,169 NLRB 1153, 1154 (1968). The Respond-
ent did not do this.
On the contrary, “[A]n employer acts in violation of Section
8(a)(1) by attributing its failure to implement the expected wage
or benefit adjustment to the presence of the union. . . .”
Earthgrains Baking Cos., 339 NLRB 24, 28 (2003), enfd. 116
Fed.Appx. 161 (9th Cir. 2004); see also Invista, 346 NLRB 1269,
1270 (2006); W. E. Carlson Corp., 346 NLRB 431, 433 (2006);
Advanced Life Systems Inc. v. NLRB, 2018 WL 3673925 (D.C.
Cir. Aug. 3, 2018). Such was the case here.
Moreover, the letter sent employees the message that the Re-
spondent was retaliating against them because the Union had
filed unfair labor practice charges on their behalves. Cf. Mesker
Door, Inc., 357 NLRB 591, 595 (2011); Valerie Manor, Inc., 351
NLRB 1306 (2007).
I therefore conclude that the statements in the letter violated
Section 8(a)(1) of the Act.
Withholding of September Wage Increases
As reflected above, the Respondent withheld annual pay ad-
justments in September 2017, for FY 2018, expressly on the ba-
sis of pending petitions and unfair labor practice charges. It has
not proffered any other reasons or shown any evidence of a valid
business justification. Significantly, warehouse employees did
receive wage adjustments at that time—contraindicative of bona
fide economic factors having been behind the Respondent’s ac-
tion.
The withholding of pay increases from employees who are
awaiting the holding of a Board election violates Section 8(a)(3)
and (1) of the Act if the employees otherwise would have been
granted the pay raises in the normal course of the employer’s
business. SNE Enterprises, Inc., 347 NLRB 472, 472 (2006);
AutoZone, Inc., 315 NLB 115 (1995), enfd. mem. 83 F.3d 422
(6th Cir. 1996); Florida Steel Corp., 230 NLRB 1201, 1203
(1975), affd. 538 F.2d 324 (4th Cir. 1976). These cases apply
directly to the mechanics and spotters, whose election has been
held in abeyance; there is no reason not to apply this same ra-
tionale to the drivers, whose ballots have been impounded. This
is especially so because of the possibility of a rerun election. I
therefore need not determine whether the conduct violated the
Act under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), noting that
the General Counsel has not suggested that such an analysis is
applicable.
The Respondent contends that the General Counsel cannot
prove that September wage adjustments were ever planned for
drivers and for mechanics and spotters (R. Br. 25, et. seq.). How-
ever, the past practice going back to at least FY 2011 was nor-
mally to grant annual wage increases to mechanics and spotters,
and either wage increases or bonuses to drivers. In this regard,
the Respondent’s September 25 letter reflected employees’ ex-
pectations of a wage increase in September 2017, and it con-
ceded that annual wage adjustments were “typically” given in
September. Moreover, the warehouse employees in September
did receive a wage adjustment, and the letter blamed the Union’s
conduct for the withholding of a wage adjustment for drivers and
for mechanics and spotters. In my view, these factors shifted the
burden to the Respondent to show that, applying the criteria it
had used for the past several years, it would have withheld the
September wage adjustments regardless of the Union’s presence
on the scene. This it failed to do.
On August 9, 2018, pursuant to Board Rule 102.6, the Re-
spondent filed a letter of supplemental authorities, citing Ad-
vanced Life Systems, above. That case does not alter my conclu-
sions. Therein, the court (slip op. at 6) determined that the
Board’s finding that the Company had an “established payment
practice” regarding pay increases and holiday gifts was “not
grounded in substantial evidence,” and it therefore vacated that
portion of the Board’s decision. Here, on the other hand, there
was an “established practice” of annual pay adjustments, and an
important difference is that in Advanced Life Systems, there is no
indication that any other groups of employees received increased
benefits at the same time that employees who sought union
SYSCO COLUMBIA, LLC 15
representation were denied them.
Accordingly, the Respondent violated Section 8(a)(3) and (1)
by not conferring wage adjustments on drivers and on mechanics
and spotters in September 2017.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(1) of
the Act.
(a) Solicited employee grievances and complaints.
(b) Promised benefits to employees.
(c) Threatened employees that their pay and benefits would
be frozen if they voted for the Union.
(d) Told employees that they would not receive wage adjust-
ments because the Union had filed petitions and unfair labor
practice charges with the NLRB.
4. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act and violated Section 8(a)(3) and
(1) of the Act.
(a) Withheld pay adjustments for employees.
(b) Conferred a parking benefit on employees.
REMEDY
Because I have found that the Respondent has engaged in cer-
tain unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to ef-
fectuate the policies of the Act.
The Respondent having discriminatorily withheld wage
adjustments must make employees whole for any losses of
earnings and other benefits suffered as a result of that dis-
crimination. A make-whole remedy is appropriate be-
cause a remedy should “restore as nearly as possible the
situation that would have prevailed but for the unfair labor
practices.” E.I. Dupont, 362 NLRB 843, 850 (2015), quot-
ing State Distributing Co., 282 NLRB 1048, 1048 (1987).
The exact amount of the increases can be determined in a
compliance proceeding if the General Counsel and the Re-
spondent are unable to agree on precise figures. See Au-
toZone, Inc., supra at 133, Otis Hospital, 222 NLRB 402,
404–405 (1976), enfd. 545 F.2d 252 (1st Cir. 1976). The
wage adjustments that the Respondent’s warehouse em-
ployees received, as well as wage adjustments given to
drivers and to mechanics and spotters at other Sysco
Southeast companies, may provide guidance.
The make whole remedy shall be computed in accordance
with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest at
the rate prescribed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Cen-
ter, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC
d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014), the Re-
spondent shall compensate employees for the adverse tax
consequences, if any, of receiving a lump sum backpay award,
and, in accordance with AdvoServ of New Jersey, Inc., 363
NLRB No. 143 (2016), the Respondent shall, within 21 days of
the date the amount of backpay is fixed either by agreement or
Board order, file with the Regional Director for Region 10 a re-
port allocating backpay to the appropriate calendar year for the
employees. The Regional Director will then assume responsibil-
ity for transmission of the report to the Social Security Admin-
istration at the appropriate time and in the appropriate manner.
As stated in the complaint, the General Counsel seeks an ex-
traordinary remedy, to wit, requiring that at the various locations,
Brawner hold meetings and read the notice to employees on
worktime in the presence of a Board agent. Alternatively, the
General Counsel seeks an order requiring that Respondent
promptly have a Board agent read the notice to employees during
worktime in the presence of at least two of Respondent’s super-
visors and agents named in paragraph 6.
The Board may order extraordinary remedies, including such
a reading of the notice, where the Respondent’s unfair labor 20
practices are “so numerous, pervasive and outrageous” that such
remedies are necessary “to dissipate fully the coercive effects of
the unfair labor practices found.” Fieldcrest Cannon, Inc., 318
NLRB 470, 473 (1995), enfd. in relevant part 97 F.3d 65 (4th
Cir. 1996) (and cited cases). In that case, such remedies were
imposed in light of the “corporate-wide nature of the Respond-
ent’s egregious and notorious unfair labor practices. . . .” Ibid;
see also Federated Logistics & Operations, 340 NLRB 255,
256–257 (2003).
Where a particular corporate individual, to the knowledge of
employees, was directly responsible for many of the violations
that justified the read-aloud requirement, the Board has required
that individual to read the notice, in order to make the remedy
fully effective. Ingredion, Inc., 366 NLRB No. 74, slip op. at 1
fn. 2 (2018), citing, inter alia, Domsey Trading Corp., 310 NLRB
777, 778–780 (1993), enfd. 16 F.3d 517 (2d Cir. 1994); Texas
Super Foods, Inc., 303 NLRB 209, 209 (1991); see also Conair
v. NLRB, 721 F.2d 1355, 1385–1387 (D.C. Cir. 1983), confirmed
on point, HTH Corp. v. NLRB, 823 F.3d 668, 673, et. seq., (D.C.
Cir. 2016).
Had the Respondent’s unfair labor practices been confined to
preelection campaigning in the March–April time frame, I likely
would not find them sufficiently “numerous, pervasive and out-
rageous” to warrant a special remedy. However, the Respond-
ent’s violations went beyond those parameters. Thus, about 5
months after the mechanics’ and spotters’ election and the driv-
ers’ ballot count were held in abeyance, pending adjudication,
the Respondent withheld normally-granted annual pay adjust-
ments and issued a letter improperly blaming the Union for its
action—because the Union utilized the Board’s representation
and unfair labor practice procedures on behalf of employees.
These actions discouraged employees from supporting the Union
and drove home the point that they were being punished for seek-
ing to organize, reinforcing the earlier unlawful message that
voting for the Union would result in no wage increase. This is
especially so when the warehouse employees, who had not been
the subject of organizing efforts, did receive pay adjustments. I
will therefore grant, with modification, the General Counsel’s
request for the special remedy described above, with language
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
consistent with the Board’s decision in Ingredion, Inc., above;
see also Deep Distributors of Greater NY, 365 NLRB No. 95,
slip op.at 4 (2017).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended20
ORDER
The Respondent, Sysco Columbia, LLC, Columbia, South
Carolina, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising employees benefits to discourage them from
supporting Teamsters Local Union 509 (the Union) or any other
labor organization.
(b) Soliciting employee complaints and grievances to dis-
courage them from supporting the Union or any other labor or-
ganization.
(c) Threatening employees that their wages and other benefits
will be frozen if they vote for union representation.
(e) Telling employees that they will not receive wage adjust-
ments because the Union filed petitions to represent them and
filed unfair labor practice charges.
(f) Withholding wage adjustments because employees en-
gaged in union activity.
(g) Conferring benefits on employees to discourage them
from supporting the Union or any other labor organization.
(h) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) Make employees whole for any loss of earnings or other
benefits suffered as a result of the discrimination against them in
the manner set forth in the remedy section of this Order.
(b) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
(c) Within 14 days after service by the Region, post at all their
South Carolina and Georgia facilities, copies of the attached no-
tice marked “Appendix.”21 Copies of the notice, on forms pro-
vided by the Regional Director for Region 10, 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 employ-
ees are customarily posted. In addition to physical posting of
paper notices, notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicate
with its employees by such means. Reasonable steps shall be

20 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent have
gone out of business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since March
1, 2017.
(d) During the time that the notice is posted, hold a meeting
or meetings at all their South Carolina and Georgia facilities dur-
ing working time, scheduled to ensure the widest possible attend-
ance, at which the attached Notice to Employees shall be read to
employees by Michael Brawner or Tom Propps or, at the Re-
spondent’s option, by a Board agent in the presence of Brawner
or Propps.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
I FURTHER ORDER that the complaint is dismissed insofar as it
alleges violations of the Act not specifically found.
Dated, Washington, D.C. August 16, 2018
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 be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT promise you benefits to discourage you from
supporting Teamsters Local Union 509 (the Union) or any other
labor organization.
WE WILL NOT solicit your complaints and grievances to dis-
courage you from supporting the Union or any other labor organ-
ization.
WE WILL NOT threaten you that your wages and other benefits
will be frozen if you vote for union representation.
WE WILL NOT tell you that you will not receive wage adjust-
ments because the Union filed petitions to represent you and
filed unfair labor practice charges.
WE WILL NOT withhold your wage adjustments because you
engaged in union activity.
21 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice “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.”
SYSCO COLUMBIA, LLC 17
WE WILL NOT confer benefits on you to discourage you from
supporting the Union or any other labor organization.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of your rights under Section
7 of the Act, as set forth at the top of this notice.
WE WILL make you whole for any loss of earnings and other
benefits you suffered as a result of our unlawful withholding of
your wage adjustments in September 2017, with interest.
SYSCO COLUMBIA, LLC
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/10-CA-197586 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.