Sysco Food Services of Cleveland

National Labor Relations Board - Board Decisions

Aug 25, 2006

347 N.L.R.B. 1024 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
347 NLRB No. 98
1024
Sysco Food Services of Cleveland, Inc. and Jeffrey A.
Travnik. Case 8–CA–35780
August 25, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND SCHAUMBER
On June 7, 2006, Administrative Law Judge David I.
Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief and the General
Counsel filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Sysco Food Services of
Cleveland, Inc., Cleveland, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
Iva Y. Choe, Esq., for the General Counsel.
Joseph N. Gross, Esq., of Cleveland, Ohio, for the Respondent.
DECISION
STATEMENT OF THE CASE
DAVID I. GOLDMAN, Administrative Law Judge. The Gen-
eral Counsel issued a complaint in this case on June 24, 2005,
against Sysco Food Services of Cleveland (Sysco)1 based on a

1 No exceptions were filed to the judge’s dismissal of the allegation
that the Respondent violated Sec. 8(a)(3) by discharging employee
Jeffrey A. Travnik.
2 Member Schaumber notes that context is key in most 8(a)(1) cases,
and this one is no exception. The statement found to be coercive was
uttered in a casual, consensual, and off-the-record discussion about
potential reinstatement for Travnik based largely upon the Union’s
business agent Sayre’s longstanding working relationship with the
Respondent’s director of warehousing, Spadaro. The record shows that
many hundreds of grievances were filed annually in what is seemingly
a less than harmonious labor/management environment. As such, one
might easily find that Spadaro’s reference to the filing of “stupid griev-
ances” was more innocuous (and possibly accurate) than it was coer-
cive. One might also question the wisdom of bringing the full force of
the Federal Government to bear in prosecuting such a violation. How-
ever, given the judge’s thoughtful analysis, careful credibility resolu-
tions, and direct observation of the witnesses, Member Schaumber
cannot conclude that the judge erred in finding that Spadaro’s statement
might, in context, have had the effect of restraining or coercing em-
ployees in the exercise of their Section 7 rights. He therefore concurs
in finding the violation.
1 On my own motion I have amended the caption to delete reference
to the parent company of Respondent. There are no allegations of
charge filed by Jeffrey A. Travnik on April 22, 2005. Travnik
was discharged by Sysco on November 4, 2004. The Govern-
ment alleges that Sysco violated Section 8(a)(1) and (3) of the
National Labor Relations Act (the Act) when it discharged
Travnik. The Government contends that Travnik’s grievance-
filing activities motivated the discharge. Sysco denies this, and
asserts that the motivation for Travnik’s discharge was viola-
tion of a Sysco work rule that prohibits theft, including “caus-
ing the Company to pay for time not worked.” The Govern-
ment also alleges that Sysco independently violated Section
8(a)(1) of the Act through statements made to Travnik by a
Sysco supervisor at a December 2004 postdischarge meeting.
The meeting was called by Travnik’s union representative as
part of an effort by Travnik and the Union to persuade Respon-
dent to reinstate Travnik. Sysco denies that it violated the Act
in this instance as well.2
This case was tried before me in Cleveland, Ohio, on March
7, 8, and 9, 2006. Counsel for the General Counsel and counsel
for Respondent filed briefs in support of their positions on May
16, 2006. On the entire record, including my observation of the
demeanor of the witnesses and other indicia of credibility, and
after considering the briefs filed by the parties, I make the fol-
lowing findings of fact, conclusions of law, and recommenda-
tions.
I. JURISDICTION
Sysco is corporation that markets and distributes food ser-
vice products to customers throughout northern Ohio from its
facility in Cleveland, Ohio. Its customers include schools,
nursing homes, restaurants, and other institutions requiring
prepared food products. Sysco admits that in conducting its
business it annually sells and ships goods valued in excess of
$50,000 directly to points outside the State of Ohio. Sysco
admits, and I find that it is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
For many years the International Brotherhood of Teamsters,
Local No. 507 (Teamsters or the Union) has represented a bar-
gaining unit of Sysco employees (including Charging Party
Travnik) for purposes of collective bargaining. The complaint
alleges and I find that at all material times the Union has been a
labor organization within the meaning of Section 2(5) of the

wrongdoing, or even conduct by the parent company, Sysco Corpora-
tion. There was no evidence presented at trial, nor any argument di-
rected towards showing that the parent and subsidiary corporations are
single employers, or that the parent is liable for Respondent’s conduct.
Record references support an inference that the companies are closely
related and management transfers between facilities are not uncommon.
However, in the absence of any discernible reason for the caption to
reference another (albeit related) corporate entity, I have struck Sysco
Corporation from the caption.
2 Sysco’s answer raised as affirmative defenses, inter alia, conten-
tions that the complaint failed to state a claim, its allegations were
barred by the statute of limitations, and that the dispute should be de-
ferred to arbitration. These defenses were not pursued at the hearing or
advanced in Respondent’s posthearing brief. In any event, they are not
warranted based on the record, and I reject them without further discus-
sion.
SYSCO FOOD SERVICES OF CLEVELAND 1025
Act.
III. FACTUAL FINDINGS
A. Background
Sysco has operated from its current, newly constructed
450,000-square-foot facility at Grayton Road in Cleveland,
Ohio, since August 2004. Before then, and since 1992 when
Sysco acquired Seaway Foods, Sysco operated from an older
facility located on Aurora Road in Bedford Heights, Ohio.
The new Cleveland facility is made up of an office and
warehouse area. There is also a separate garage area. The
warehouse is divided into a freezer area (for frozen foods), a
cooler area (for refrigerated items), and a dry area (for product
stored at room temperature). The old Bedford Heights facility
also had three similar warehouse areas. It also had three sepa-
rate docks servicing the three warehouse areas: a freezer dock,
a cooler dock, and a dry dock. The new facility in Cleveland
has only two docks: a perishable or refrigerated dock and a dry
dock. The refrigerated dock supports frozen and refrigerated
products. The dry dock supports nonrefrigerated products.
Sysco employs approximately 475 employees including ap-
proximately 230 bargaining unit employees represented by the
Teamsters for purposes of collective bargaining. Sysco and the
Teamsters are parties to a labor agreement covering the terms
and conditions of the bargaining unit employees. This agree-
ment became effective June 1, 2001, and by its terms will re-
main in effect until at least June 30, 2007.
Jeffrey Travnik began working at the Bedford Heights facil-
ity in 1989 when it was operated by Seaway Foods. In 1992,
Travnik became an employee of Sysco when Sysco acquired
Seaway and assumed operation of the facility. Travnik was a
union member throughout his employment with Sysco. He
served as an elected union steward for three terms beginning in
1994, and last served as a steward in 2001.
From 1996 until his termination in November 2004, Travnik
held the position of checker/stockman, frozen returns, on the
third shift (night shift). The standard hours for the third shift
are 9 p.m. to 5:30 a.m., but Travnik sometimes started earlier,
and sometimes worked later. Although his duties could vary
based on supervisory directives, his chief responsibility was
putting away “returns”—i.e., product that was returned to the
facility by the daytime drivers. As his job title indicated, put-
ting away frozen returns was the primary task of his job. How-
ever, in April 2004, the other employees who performed “re-
turns” work on the third shift were reassigned, leaving Travnik
responsible for third-shift returns generally, whether frozen,
cooled, or dry products. On the dock Travnik would go thru
pallets of returns, check for damaged or thawed product, pull
off the old labels and return the product to the appropriate
warehouse where it was put in slots. He would then scan the
slots, which electronically recorded the product that had been
returned and was available for reshipment. Travnik’s work
also required him to go to the driver checkin office to process
drivers’ bills, and other paperwork.
B. Grievance Filing Activity
The collective-bargaining agreement between the Teamsters
and Sysco contains a fairly typical grievance procedure cover-
ing “any controversy or difference” arising between the Union
and Sysco, or between any employees and Sysco. The griev-
ance procedure culminates in binding arbitration for unresolved
grievances that the Union chooses to pursue to arbitration.
Records submitted at the hearing (R. Exh. 8) establish that in
2001 approximately 287 grievances were filed by approxi-
mately 130 different lead grievants.3 In 2001, the records indi-
cate that Travnik was the lead grievant on eight grievances. In
2001, employee McFadden filed 12 grievances as a lead griev-
ant, employee Brann filed 13, employee Dmitruk filed 11, em-
ployee Culp filed 10, and employee Shrader filed 9.
In 2002, the records (R. Exh. 9) show that approximately
293 grievances were filed by approximately 129 different lead
grievants. Travnik filed six grievances (and signed two others
that were initiated by other employee lead grievants). In 2002,
employee McFadden filed 10 grievances as lead grievant, em-
ployee Schuler filed 9, and employee Thurber filed 7.
In 2003 (R. Exh. 10), approximately 343 grievances were
filed by approximately 129 lead grievants. Travnik filed three
grievances as lead grievant. Employee McFadden filed 17,
employee Dmitruk filed 13, and employee Demchuk filed 10.
In 2004 (R. Exh. 11), the year of Travnik’s discharge, ap-
proximately 418 grievances were filed by approximately 155
different lead grievants. Excluding the grievance filed over his
discharge, Travnik was the lead grievant in 17 grievances in
2004. Employee Mullinex filed 15, employee Houston filed
14, employee Dmitruk filed 13, employee Stevens filed 10, and
employee Inman filed 9.
In 2005 (R. Exh. 12), the year following Travnik’s discharge
approximately 359 grievances were filed by approximately 114
different lead grievants. In that year “heavy” grievers included
employee Mullinex who filed 21 grievances, employees
Dmitruk, E. R. Torowski, and Schuler, each of whom filed 13,
employees McFadden and Kropff filed 11, employee Fouquet
filed 10, and employee Buckland filed 9.
As noted, in calendar year 2004, Travnik filed 17 grievances
(excluding the grievance filed over his discharge). These
grievances concerned a variety of work assignment issues,
safety-related concerns, and overtime issues.4 Travnik also

3 By “lead grievant” I mean the individual who was the sole or first
employee signatory to a grievance. Some grievances were signed by
multiple individual employees. A few “group grievances” were sub-
mitted by the Union or a department within the facility on behalf of
affected employees. These grievances are not counted as having a
“lead” grievant, but are counted in the total number of grievances. The
figures provided here are approximations. It is not possible to obtain an
exact count based on the records submitted. However, these records,
and the approximation of the number of grievances and lead grievants
drawn from them do provide significant evidence regarding the consis-
tent volume of grievances and grievants.
4 These included: a January 28 grievance regarding mandatory over-
time (GC Exh. 26); a March 29 grievance requesting that a bid be put
up for a Dry Returns third-shift position (GC Exh. 3); an April 12
grievance over the use of a shuttle driver to work for 1-1/2 to 2 hours in
the returns department rather than assigning the work to a warehouse
plant employee (GC Exh. 4); a May 5 grievance regarding the potential
safety implications of manning reductions for the third-shift returns
department that left Travnik the only employee working in that position
(GC Exh. 5); a May 10 grievance objecting to a supervisor opening
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1026
signed on to two “group grievances” initiated by other employ-
ees.5 Finally, Travnik filed a November 4 grievance over his
termination. (GC Exh. 20.)
By all evidence, Sysco faithfully and routinely responded to
the hundreds of grievances filed each year in accordance with
the contractual grievance procedures. As the testimony and
records demonstrate, Travnik filed grievances off and on
throughout his employment with Sysco. Sysco’s responses to
all but one of Travnik’s 2004 grievances were entered into
evidence by the General Counsel. In most cases the responses
disputed the assertion of a contractual violation. In two in-
stances the responses indicated agreement with the issue raised
by Travnik’s grievance. (See GC Exhs. 12, 18.) After Sysco’s
initial response to a grievance, the Union could request a griev-
ance hearing meeting on the issue. The Union did not do so in
every case, but Travnik testified that whenever he requested
that his grievance be processed to a grievance hearing the Un-
ion would request one and a hearing would be conducted with
Sysco. After grievance hearing meetings, Sysco’s director of
legal affairs, Ralph Knull, would prepare a response stating
Sysco’s position in light of the grievance hearing meeting. At
that point, if the dispute remained unresolved, the Union could
process the grievance further by notifying Sysco of its intent to
arbitrate the dispute.
Despite the large number of grievances filed each year, very
few disputes reached arbitration. Knull testified that in the last
3 years there had been three arbitrations, two of which involved
the same issue. Knull testified that at the time of the hearing in
this case the Union had notified Sysco of intent to arbitrate 16
grievances, a number that could be reduced through further
negotiations between the parties.
Travnik testified vaguely that he felt that some of the super-
visors showed favoritism toward other employees. At one
point in his direct testimony, with regard to Supervisor Craig
McDonald, he attributed this favoritism to his grievance filing.

trailer doors and setting dock plates, work alleged to be bargaining unit
work (GC Exh. 6); a May 11 grievance objecting to shuttle drivers
removing product from the returns trailer, work allegedly assigned to
the returns department employees (GC Exh. 7); a May 13 grievance
objecting to a change in work rules that permitted shuttle drivers to pull
out shuttle trailers (GC Exh. 8); four grievances filed on May 18 object-
ing to the safety implications of shuttle drivers and a supervisor calling
out shuttle trailers, and other work assignment issues (GC Exhs. 9–11);
two May 27 grievances regarding a work assignment (GC Exh. 12) and
the possibility that a supervisor was performing unit work (GC Exh.
13); a May 31 grievance objecting to a supervisor “picking up small
pieces of paper near the freezer doors” which was unit work (GC Exh.
14); a June 22 grievance asserting that the third-shift returns depart-
ment employees can leave after 8 hours if certain other employees are
removed from the area (GC Exh. 16); a July 21 grievance over a shuttle
driver’s performance of returns department work (GC Exh. 18); and a
September 9 grievance objecting to not being offered overtime (GC
Exh. 19a–b).
5 Travnik was 1 of approximately 35 third-shift employees to sign a
May 31 grievance objecting to Sysco’s allowing 3 junior employees to
work more overtime hours than the grievants. (GC Exh. 15.) Travnik
was one of approximately 12 employees signing a July 19 grievance
regarding the use of temporary workers on the first shift. (GC Exh.
17.)
However, on cross-examination he amended this and indicated
that “I’m not sure why he [McDonald] treated me differently. I
just know that there was favoritism played between the second
shift guys and the third shift guys.” (Tr. 114.) Travnik did
testify that sometimes when he presented McDonald with a
grievance McDonald would say “snide” things like “[n]ot an-
other one. Oh geez what did I do now. Things like that.” (Tr.
116.) Travnik did not give any timeframe when these com-
ments occurred. According to Travnik, McDonald always
accepted the grievances, and handled them in accordance with
the grievance procedure. “Everything was, everything was
done yeah. . . . He’d turn it in to whoever, Ralph [Knull] or
whoever got it. It was turned in. I got my answers.” (Tr.
116.)6
The only other (predischarge) references to Travnik’s griev-
ance-filing were two comments alleged to have been made in
June and July 2004 by Sysco Vice President of Operations
Brian Cook. Travnik testified that in June Cook approached
him on the freezer dock of the old Aurora Road facility. Trav-
nik described the encounter as follows:
I was checking through a pallet and I heard a voice behind
said, how’s it going? I turned around it was Brian Cook. I
said, all right. He said, if you’re filing all these grievances
and you’re so unhappy here why don’t you find work some-
where else or why don’t you go work somewhere else and I
told him that I was happy here. He said, it doesn’t seem like
you are. I said, I am. I continued about my work and he
walked away.
Travnik relayed a second, similar incident that occurred in
July 2004, when Travnik was standing by the memo board near
the timeclock. Travnik testified to this incident as follows:
I hadn’t started my shift yet, I hadn’t punched in yet and
somebody from behind said, how was your vacation. I turned
around it was Brian Cook. He was, he was on this side of me,
my left hand side. And I said, vacation was fine. He said, I
saw you were on family medical the week before, and I said,
yeah. And he said, you still filing a lot of grievances. And at
that point I just kept reading the memo board and he walked
away.7

6 MacDonald testified briefly but did not deny (and was not asked)
whether he ever made such comments to Travnik. I credit Travnik’s
uncontested testimony on this point. I note that MacDonald was on
medical leave in the fall of 2004. There was conflicting testimony
about whether he was Travnik’s supervisor, although it is undisputed
that he was a supervisor and had the authority to supervise Travnik.
However, he chiefly worked second shift and although their schedules
overlapped was not Travnik’s direct supervisor during much of the
shift.
7 Cook flatly denied talking to Travnik in either June or July 2004. I
credit Travnik’s account. I found Travnik’s demeanor in relating this
incident impeccable. Although he could not recall the time that the first
incident occurred, otherwise his recollection seemed sure and he de-
scribed the events, location, and the probable dates with specificity and
completeness that seemed genuine and plausible. His demeanor struck
me as honest, not contrived. It is not surprising that these two similar
and seemingly chance encounters with the second highest ranking
Sysco official stuck in his mind. By the same token, the events may
SYSCO FOOD SERVICES OF CLEVELAND 1027
Cooks’ comments were the final “grievance-related” com-
ments made to Travnik until after his discharge. Indeed, after
July, Travnik filed only one grievance prior to his November
discharge.
C. Work Rule 1–4
Sysco maintains work rules that are found in the union em-
ployee handbook. These work rules include work rule 1-4 (R.
Exh. 6) which states:
Theft including but not limited to falsification of payroll re-
cords, consuming Company products without consent of a
supervisor (regardless of value), sleeping or otherwise causing
the Company to pay for time not worked, unauthorized re-
moval of Company property from the premises and/or deliv-
ery to an unauthorized person or location.
Work rule 1–4 provides further (and explicitly) that “Dis-
charge” is (or at least, may be) the penalty for the “1st Viola-
tion.”
At the hearing, uncontradicted evidence was presented re-
garding eight other employees terminated—both before and
after Travnik’s November 2004 termination—for violation of
work rule 1–4. These included:
Robert A. Vitko—discharged for violation of work
rule 1-4 in October 2002. His hire date was November 16,
1998. A videotape investigation of Vitko and another em-
ployee was undertaken after suspicion was raised that they
were taking excessive breaks and lunch. Vitko was dis-
charged when Respondent reviewed the videotape and be-

have had less significance for Cook. While Cook denied talking to
Travnik in June or July, he was clear that during this time he was “con-
sumed” with efforts to facilitate the move to the new Cleveland facility.
Cook was extraordinarily busy during this period, shuttling between
sites, making arrangements for the move, overseeing construction of
the new facility, and negotiating work rule changes with the Union.
By itself his work on the move “probably was a job and a half, two jobs
in one day.” Cook may not remember talking to Travnik. But I am
confident the conversations occurred. On direct examination Cook
denied being on the dock and able to talk to Travnik between 9 p.m.
and 5:30 a.m. in July 2004, but on cross-examination he testified that in
June 2004 he arrived at the Bedford Heights facility as early as “[f]ive,
six o’clock in the morning.” In addition, that summer Travnik some-
times began work some hours before the normal start time for third
shift. Thus, their schedules may have occasionally overlapped. On
cross-examination, Cook admitted talking to third-shift supervisors in
the morning, after first denying any recollection of such meetings. His
office in the old facility, which he kept until early July, was adjacent to
the freezer, and thus near the freezer dock where Travnik alleges the
June encounter occurred. Travnik contended that during the July en-
counter Cook was dressed in blue shorts, a blue cap and a Sysco Safe
T-shirt. Cook denied only that in June he was not on the dock in
shorts. He denied owning a Sysco Safe T-shirt (but admitted owning
other Sysco T-shirts) and admitted that he owned several Sysco ball
caps. He denied owning denim shorts, but Travnik had not testified
that Cook was wearing denim. In sum, Cook’s “denial” of the specific
clothing Travnik identified him in largely did not join the issue.
Whether Travnik was mistaken about Cook having a Sysco Safe t-shirt
(as opposed to some other Sysco T-shirt), or Cook was being less than
forthright about clothing is a minor issue to me. Travnik’s account of
these incidents rang true.
lieved it supported the charges. However, the videotape
did not support the charges against the other employee and
he was not terminated.
David Schuster—discharged for violation of work rule
1–4 on March 18, 2003. Schuster had a hire date of Feb-
ruary 6, 1988. He was discharged based on review of
video surveillance tapes that showed excess breaks and
lunch time totaling 5 hours and 47 minutes over the course
of four work days. [GC Exh. 36.]
Anthony Lance—discharged for violation of work rule
1–4 on March 18, 2003. Lance had a hire date of Febru-
ary 8, 2000. He was discharged based on review of video
surveillance tapes that showed excess break and lunch
time totaling 4 hours and 25 minutes over course of four
work days. [GC Exh. 44.]
Timothy Goodreau—discharged for violation of work
rule 1–4 on March 15, 2005. Goodreau’s hire date was
August 13, 2000. He was discharged for taking excess
breaks and lunch totaling 1-1/2 hours over the course of
eight work days. In addition, Sysco’s grievance response
setting forth the basis for his discharge cited the length of
time Goodreau took to fill specified orders. [GC Exh. 46.]
Goodreau had previously been discharged for violation of
work rule 1-4 in 2003, based on videotape of his actions,
but in the grievance process it came out that he was com-
ing to work early and was being videotaped prior to the
start of his shift. The 2003 discharge was expunged and
Goodreau was reinstated, only to be discharged in 2005.
John Unkefer—discharged for violation of work rule
1-4 on January 31, 2006. Unkefer’s hire date was June 1,
1981. He was discharged based on review of video sur-
veillance tapes that showed excess breaks and lunch total-
ing 5 hours and 14 minutes over the course of five work
days. [GC Exh. 32.] In 1998 Unkefer had been provi-
sionally discharged but was reinstated for what appears to
be excessive breaks and lunch, and poor productivity. He
had been counseled repeatedly over the years for poor
productivity. [GC Exh. 35.]
Brad Shields—discharged in September 7, 2005 for
violation of work rule 1-4 during the course of one day
based on review of video tape and for a fifth occurrence of
a failure to meet productivity standards, an offense that is
subject to progressive discipline. [GC Exh. 48.] Shields’
hire date was September 1995.
Robert Francis—suspended May 27, 2005 pending in-
vestigation for violation of work rule 1-4, based on gaps in
his location report and a very low productivity percent-
ages. [GC Exh. 50.] However, Francis was reinstated be-
cause at the grievance hearing it was demonstrated that
Francis, who had only recently been put into the order se-
lector position from which he was terminated, had been
using an incorrect procedure after breaks and lunch that
made his scanning reports and productivity figures appear
as if he was not performing any work (and therefore it ap-
peared that he was still taking lunch or break) when he
was actually back at work.
Larry Washington—discharged in 2005 for a violation
of work rule 1-4. A videotape was made of Washington
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
covering 4 days. Respondent’s position was that Wash-
ington was paid for time not worked but the record does
not reveal the amount of this time. Washington is de-
scribed in the record as a “longtime employee” but the re-
cord does not reveal his hire date.
D. Travnik’s Discharge
Travnik was discharged November 4, 2004. Respondent’s
witnesses testified extensively to the events surrounding Trav-
nik’s discharge. For the most part, their testimony was consis-
tent and mutually corroborative of one another. I have noted
some of the discrepancies but they are minor and do not detract
from Respondent’s essentially consistent and uncontradicted
account of the process of Travnik’s termination.
Edward Dowd assumed the position of director of outbound
warehousing at Sysco on September 15, 2004. Prior to that he
was employed for 7 years at Sysco of Philadelphia. In his posi-
tion as director of outbound warehousing, Dowd oversaw the
selection and loading of products going out on the trucks. He
typically worked 4 p.m. to 7 or 8 a.m. Dowd directly super-
vised four supervisors to whom a total of 120 employees re-
ported. Dowd reported to Michael Spadaro, who in September
2004 had returned to Sysco and assumed the position of direc-
tor of warehousing. Spadaro had a long career at Sysco. He
worked as a manager at Seaway Foods and left for Sysco in
1990. He worked for Sysco from 1990 until May 2003, and
held Dowd’s position of director of outbound when he left
Sysco. Spadaro returned in September 2004 and assumed the
position of director of warehousing, from which he reported to
Brian Cook. Dowd and Supervisors Chuck Leiben and Chris
Thomas reported to Spadaro.
Dowd described the Sysco operation, which had only weeks
before moved to the new Cleveland facility, as being in “disar-
ray” when he began work in September. Trucks were deliver-
ing product late and Dowd described the volume of returns as
“very heavy” at this time. One evening in October, Dowd was
assessing the returns situation and looked for but could not find
Travnik around the returns area. He asked one of the supervi-
sors if Travnik was on break and was told that it was not Trav-
nik’s breaktime. The next day Dowd raised Travnik’s absence
with Spadaro.
Spadaro stated that Dowd had come to him and said that he
tried to find Travnik the night before but had been unable to
find him and said, “I have a problem with this.” Spadaro also
testified that Dowd had a problem with Travnik’s “puts”—i.e.,
the amount returns that Travnik had put back in storage and
scanned. Spadaro testified that Dowd told him that “Jeff has
very few puts and there’s quite a few returns left.”8
Spadaro told Dowd that he would look into it and see what

8 Dowd did not testify to this and “could not recall” whether he “in-
vestigated what returns Mr. Travnik had completed or not completed”
before approaching Spadaro. I credit Spadaro’s version. When Dowd
complained to Spadaro he did not just complain about not being able to
locate Travnik, but also that the returns were not being “put” away fast
enough. Although the heavy returns were not Travnik’s fault—the
operation was in “disarray” at the time—mounting returns was the
problem Dowd was dealing with when he was looking for Travnik.
had happened. Spadaro contacted Philip Witnik, Sysco’s safety
and security manager since 2000.
Witnik has been employed at Sysco since 1991 and in man-
agement since 1994. In his current position he is in charge of,
among other things, operation of a sophisticated security sys-
tem that contains over 60 surveillance cameras, each of which
is linked to 1 of 5 “multiplex” systems that can record video
and preserve the information on a hard drive system. As cur-
rently configured, each multiplexor can maintain about 30 days
of video, depending on the number of cameras plugged into it.
It then “dumps” the older video as it downloads newer re-
cordings.
This multiplexor system was installed for the first time in the
new Cleveland facility. The Bedford Heights facility also had a
surveillance system but it was a more conventional VCR opera-
tion. Both the old system (at the old facility) and the new mul-
tiplexor system (at the new facility) have been used to monitor
the whereabouts of employees. Using a combination of infor-
mation generated from the Galaxy “swipe” system used in the
plant—to enter a room or a building in the facility an employee
had to swipe a card which creates a record identifying the indi-
vidual’s movement through the facility—and the Sysco ware-
house management systems (SWMS) location reports—
information generated by the scanning of product by employ-
ees—Witnik could identify the location of an employee during
the shift. He could then call up the video footage from the
camera mounted in that location at that time, and he would be
able to view the employee’s actions and conduct. By tracking
the movement of the employee recorded by the Galaxy and
SWMS generated information, and watching the employee on
the video tape, it was possible to follow an employee’s move-
ments throughout his entire shift. Not every location in the
facility could be viewed with the cameras, but enough could so
that it was possible to watch much of an employee’s work ac-
tivity and all of his break activity.
Spadaro approached Witnik and stated that he was having
problems with returns on the third shift and asked Witnik to use
the surveillance system to investigate what was going on during
the night shift on the evening of October 17. Travnik was the
only returns employee on third shift so that naturally led to a
review of his activity. Spadaro wanted Witnik to review the
tapes, and “[t]o observe Jeff Travnik to see what was going
on.” Spadaro offered that that there could have been a spill, or
heavy items on the dock that tied Travnik up: “You know he
could have been doing things that were strictly okay.” In the
past, Spadaro had asked Witnik to make a similar review of
tapes in other circumstances concerning other employees.
Using a combination of Galaxy swipe card information and
SWMS reports, Witnik called up video for the evening of Oc-
tober 17 and 18. He estimated that he viewed about 8 hours of
video in about an hour. Witnik confirmed with Spadaro the
times that Travnik was supposed to take breaks and lunches
and then made up a three-page handwritten report that he pro-
vided to Spadaro (R. Exh. 19(b)(1–3)) the next day. The report
listed break, lunch, and bathroom time taken by Travnik, and
Witnik told Spadaro that it looked like Travnik was taking
breaks and lunch beyond what was permitted. Witnik may
have mentioned excessive bathroom time to Spadaro as well.
SYSCO FOOD SERVICES OF CLEVELAND 1029
Spadaro testified that he and Witnik then watched “points” of
the video together.9 Spadaro went to Ralph Knull about the
situation, telling Knull that there was a video of Travnik engag-
ing in “theft of time.” Spadaro brought with him a copy of
Witnik’s handwritten account of the time of Travnik’s breaks,
lunch, and bathroom visits. With that document in hand, Knull
went to Witnik’s office and watched the video footage of Trav-
nik for the October 17–18 overnight shift. After viewing the
video, Knull called Spadaro to his office. They discussed
whether it showed a violation of work rule 1.4. Knull thought
that it did but suggested that additional days of footage be re-
viewed to see if this “was a one day occurrence or if it was
happening all the time.” Spadaro told Witnik to follow-up and
complete a similar analysis for the other days of the week of
October 17. Witnik spent 15–20 hours performing the same
process for the remainder of the week of October 17 as he had
for the initial evening shift. When he completed his review,
including the creation of handwritten notes detailing breaks,
lunch, and bathroom time that appeared on the tapes (R. Exh.
19(c)–(e)), he provided the notes to Spadaro and explained to
Spadaro that “there was a significant amount of theft of time.”
Spadaro watched the tape in Witnik’s office. According to
Spadaro, what he saw on the tapes was Travnik taking “exces-
sive breaks and lunches. I saw him actually hiding behind a
wall or whatever from Chris Thomas, which I can remember
very clearly.”
Later the week of October 24 Spadaro met again with Knull.
Spadaro had with him the handwritten notes from Witnik re-
counting the video footage incidents for the entire week that he
had reviewed. Knull scanned the notes. Knull testified that at
this second meeting Spadaro recommended that Travnik be
terminated for violation of work rule 1.4.10
Spadaro directed Witnik to transfer the relevant portions of
the tape to DVD and to turn the handwritten notes of the video
footage into a typed report. In follow up to this, Witnik trans-
ferred his handwritten notes to typed copy on a word process-
ing program and transferred the video to DVD, using a new
Magnavox system recently obtained by Sysco. As he made the
DVDs, Witnik compared the notes to the tape once more to
check for accuracy. Witnik did not transfer every incident on
the handwritten (or typed) notes to the DVD, but focused on
incidents that appeared to show excessive break, lunch, or bath-
room time, although other footage simply captures Travnik’s
movements. The footage on the typed report that is bolded (see
R. Exh. 7) is included on the DVDs. The nonbolded is not.
After completing the transfer of footage to the DVDs, Witnik
submitted the DVDs and the typed report to Spadaro. Witnik
gave Spadaro a brief overview of the report and explained that
“there was a significant amount of breaks and lunches and time

9 Witnik could not recall watching the footage with Spadaro or Knull
but I credit both Spadaro and Knull’s specific recollections of watching
video footage at various times in Witnik’s office. They relied upon
Witnik to operate the equipment.
10 I note that this differs from Spadaro’s account. He indicated that
he recommended Travnik’s termination a few days later after viewing
DVD’s of the footage created by Witnik.
in the bathrooms.”11
Spadaro reviewed the DVDs in full. He then went to Knull
with the DVDs, and, according to Spadaro (see fn.10) at this
meeting recommended that Travnik be terminated for theft of
time. Spadaro and Knull discussed the breaks to which Travnik
was entitled. Knull said he would review all the DVDs and
make a decision on Spadaro’s recommendation.
Knull testified that up to this point in time no decision to
terminate Travnik had been made, but he was keeping Cook
apprised of the situation. After watching the DVDs and com-
paring them to Witnik’s typed report (R. Exh. 7) Knull con-
cluded that “Mr. Travnik did indeed violate Work Rule 1-4,
and Mr. Spadaro’s recommendation to terminate Mr. Travnik
should be followed through on.”
Spadaro then initiated a termination notice by contacting
Sysco’s HR department. For this termination (and past termi-
nations) the practice was to require each level of management
to sign the notice before the termination could be effectuated.
The termination notice reflects that Spadaro, Knull, and Cook
signed the notice on November 3, 2005. After Spadaro, Knull,
Cook, and President and CEO Alan Hasty had signed the ter-
mination notice, Spadaro contacted Dowd and told him “that he
needed to terminate Jeffrey Travnik for work rule 1-4.”
Spadaro provided Dowd with the termination notice.
Dowd called Travnik to his office over the P.A. system. Un-
ion Steward Mike Morris was also present. Dowd read the
termination notice to Travnik and Morris. The notice stated as
the “Reason for Termination: “Violation of Work Rule # 1-4:
‘Theft including but not limited to . . . otherwise causing the
Company to pay for time not worked.’” (R. Exh. 1(a).)
Dowd orally added that the violation was in reference to a
particular date, but at trial Dowd could not remember to which
date he referred. Dowd told Travnik he was terminated and
asked for his punch card and employee I.D. Dowd did not
remember any conversation with Travnik regarding the sub-
stance of the offense. Travnik testified that he told Dowd that
he hadn’t stolen anything and hadn’t taken excessive breaks
and lunch. Dowd left his office to give Travnik and Union
Steward Morris time alone to talk and fill out a grievance.
Travnik testified that he requested the time to file a grievance;
Dowd testified that he unilaterally offered to leave his office to
give Travnik time to file a grievance. In any event, when
Dowd returned, about 15 minutes later, Morris and Travnik
presented him with a grievance challenging the termination.
Travnik’s grievance (GC Exh. 20) stated: “was terminated for
theft of time. I would like a meeting to discuss this issue. I
feel that this termination was unjust. (Work Rule 1-4.)”

11 Witnik estimated that he provided Spadaro with “roughly around
eight DVD’s.” Respondent maintains that there was only five DVDs
produced, one for each shift of the week. On cross-examination, Wit-
nik denied testifying to there having been “roughly around eight
DVD’s” and asserted, wrongly, that he had “said in between five to
eight DVD’s.” His cross-examination followed the playing of all five
videos and was the one instance where I felt that Witnik was coloring
his testimony to fit Respondent’s case. Having said that, I accept Wit-
nik’s testimony that he turned over all the videos he made to Spadaro.
Witnik testified that he made “roughly 8” but, by all evidence, there
were only five.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
Dowd forwarded the grievance to Knull. Spadaro received a
copy of the grievance the next morning. One of Knull’s re-
sponsibilities as director of legal affairs was to respond to the
grievance. Knull used the investigation that he had relied upon
to discharge Travnik as the basis for the response to the griev-
ance. As is the practice with grievance responses, Knull pre-
pared a letter to Al Mixon, secretary treasurer of the Union that
responded to the grievance and outlined Sysco’s position on the
discharge. Spadaro discussed the response with Knull and
reviewed the letter before it was sent. The letter was sent to
Mixon and also mailed to Travnik and a host of Sysco and
union officials. This grievance response letter (GC Exh. 21),
dated November 10, 2004, began by citing the breaks permitted
employees pursuant to article III, paragraph 1 of the collective-
bargaining agreement,12 and cited work rule 1-4 of Sysco’s
work rules.13 The letter then stated:
On October 17, 2004, Jeffrey Travnik was videotaped
utilizing ninety-four minutes for lunch, breaks and wash-
up, which is twenty-four minutes more than he is entitled
to under the aforementioned provisions of the Agreement.
On October 18, 2004, Mr. Travnik was videotaped utiliz-
ing eighty-six minutes for lunch, breaks and wash-up,
which is sixteen minutes more than he is entitled to under
the aforementioned provisions of the Agreement. On Oc-
tober 19, 2004, Mr. Travnik was videotaped utilizing
eighty-seven minutes for lunch, breaks and wash-up,
which is seventeen minutes more than he is entitled to un-
der the aforementioned provisions of the Agreement. On
October 20, 2004, Mr. Travnik was videotaped utilizing
one hundred and fourteen minutes for lunch, breaks and
wash-up, which is forty-four minutes more than he is enti-
tled to under the aforementioned provisions of the Agree-
ment. On October 21, 2004, Mr. Travnik was videotaped
utilizing ninety-one minutes for lunch, breaks and wash-
up, which is twenty one minutes more than he is entitled
to under the aforementioned provisions of the Agreement.
Therefore, because Mr. Travnik caused the Company to
pay him for two hours and two minutes of work during the
week of October 17th, which Mr. Travnik did not actually
work, Sysco Cleveland acted in accordance with Rule 1-4

12 The letter stated:
Article III, paragraph 1 of the July 1, 2001 Agreement be-
tween Sysco Cleveland and the Union (Agreement) states that:
“Each employee shall be allowed a fifteen (15) minute break for
physical relief after two and one-half (2-½ ) hours of work and a
further fifteen (15) minute break for physical relief after five (5)
hours of work . . . Wash-up time of five (5) minutes before lunch
break and five (5) minutes before the shift ends.” In addition, Ar-
ticle III, paragraph 15 of the Agreement states that” “Each em-
ployee is to receive during each working day, an unpaid lunch of
not less than thirty (30) minutes, not later than five (5) hours nor
sooner than three (3) hours after starting work.”
13 With regard to work rule 1-4, the letter stated:
Work Rule 1-4 of Sysco Cleveland’s Union Employee
Handbook specifically states that the first violation of the follow-
ing shall result in discharge: “Theft including but not limited to .
. . otherwise causing the Company to pay for time not worked . . .
.”
and terminated Mr. Travnik’s employment on November
3, 2004.
After receipt of Sysco’s response, the Union contacted
Spadaro to request a grievance hearing, the next step in the
grievance procedure. The grievance hearing was set for No-
vember 18, 2004. It took place in the conference room next to
Knull’s office. Present for Sysco were Spadaro and Knull. For
the Union, Travnik, Union Steward Joe McFadden, Union
Trustee Dennis Flora, and Union Business Agent Larry Sayre
attended the grievance hearing.
Sayre began the meeting by asking for the basis of the dis-
charge and requesting to see the evidence on which Sysco
based Travnik’s termination. Spadaro read the November 10
grievance response to the group out loud. Knull said that the
video showed Travnik taking too long on lunches and breaks
for a 5-day period. Knull had all 5 days of DVD tapes in the
room but told Sayre that they would show “the worst offending
day,” which was October 20. After viewing the DVD, Sayre
asked Travnik if he had anything to say. Travnik “indicated
that he was having some issues with his mother-in-law, that
were causing quite a bit of stress on him and that that was caus-
ing him to have vomiting and diarrhea, and that may be the
reason for—uh, some of the issues related to the breaks.” Ei-
ther Spadaro or Knull replied that the bathroom breaks were
not relied upon as a basis for the discharge. During the meeting
there was also conversation between Travnik and Knull regard-
ing a portion of the video where Travnik was carrying his lunch
box into the breakroom office. Travnik said that he wasn’t
going to lunch during that time, but was going to look up prod-
uct information for his job. There was also conversation about
Travnik taking his 15-minute break at the end of the day.
Travnik indicated that he had been doing that for a long time.
Travnik raised at the meeting that he was entitled to a 10-
minute freezer break, although Spadaro said that he was not.
Travnik also mentioned that he believed he was entitled to
travel time to go from breaks or lunch back to his worksite.
At the grievance hearing, neither the Union nor Travnik al-
leged that Travnik’s discharge was related to his grievance-
filing activity. The Union asked for time alone with Travnik at
which point Spadaro and Knull left the room for approximately
15–20 minutes. At that point, Travnik and the union represen-
tatives came out and requested Travnik’s reinstatement. They
appealed to the fact that Travnik was a long-term employee of
Sysco. The Union also requested to see the remaining tapes.14
The Union asked for Sysco’s response on the grievance.
Spadaro indicated that they would get the Union a response.
In the next few days Spadaro, Knull, and Cook met and de-
cided that Sysco would not rescind the discharge. Spadaro
explained their reasoning as follows:
Well the fact that we had already terminated people for steal-

14 Sayre testified that he wanted to see the other videos but Knull
and Spadaro did not have time to show the remaining videos that after-
noon. In December Sayre called Spadaro several times and requested
to view the remaining tapes, but Spadaro “kept saying Mr. Knull’s out
of the office or he’s going to be out of the office.” The Union never
viewed the remaining tapes.
SYSCO FOOD SERVICES OF CLEVELAND 1031
ing time and the fact that Jeff may have had personal prob-
lems, even if he was sick, it was something that he should
have came to a supervisor with before hand. We weren’t
counting all his times for his bathrooms anyway so if it was
just sick, he didn’t look sick during his breaks and his lunches
while we were observing him. We gave him the benefit of
the doubt for the bathroom time. It was still excessive theft of
time for breaks and lunches.
After that, Knull drafted the grievance hearing response to
the Union. This response (GC Exh. 22) was dated November
24, 2004, and, like the earlier response to the Union, was ad-
dressed to Al Mixon. The letter’s first three paragraphs were
identical to the previous November 10, 2004 response: describ-
ing the breaks in the collective-bargaining agreement, Sysco’s
work rule 1-4, and a description of the excessive lunch and
breaks viewed on the video. The letter then adds the following:
A grievance hearing was held between Sysco Cleve-
land and the Union on November 18, 2004 regarding Mr.
Travnik’s November 4, 2004 grievance (see attached). At
the hearing, Mr. Travnik and the Union stated that, during
the past few months, Mr. Travnik has been dealing with
personal situations that have put him under extreme stress
and pressure. Mr. Travnik alleged that, as a result of such
pressure, he was vomiting and had diarrhea during the
week of October 17th and that such conditions caused him
to take excessive lunches and breaks. The Union re-
quested that the Company take this information into con-
sideration and reconsider its decision to terminate Mr.
Travnik’s employment.
Though Sysco Cleveland sympathizes with Mr. Trav-
nik’s personal situations, it cannot tolerate Mr. Travnik’s
actions of causing the Company to pay him for two hours
and two minutes of work, during the week of October
17th, that Mr. Travnik did not actually work (particularly
since the two hours and two minutes of time did not even
include numerous, additional bathroom breaks that Mr.
Travnik utilized during the week of October 17th). There-
fore Sysco Cleveland will not reconsider its decision to
terminate Mr. Travnik’s employment for violation of
Work Rule 1-4.
Article XIV, paragraph 3 of the labor agreement provides that
arbitration is the next step for unresolved grievances. In this case
the Union did not seek to bring the Travnik discharge grievance
to arbitration. In April, 2005 Travnik was notified by the Union
that his discharge grievance was not going to arbitration.
E. The Meeting at Bob’s Big Boy Restaurant
A few weeks after the grievance hearing Sayre suggested to
Travnik that perhaps Spadaro “might be able to do something
to get [Travnik] back.” Sayre had known Spadaro for 15–20
years, having worked under him at Sysco in years past. Sayre
contacted Spadaro and requested that he meet with Sayre and
Travnik to “see if we can get this resolved.” Spadaro testified
that in asking for the meeting Sayre told him that Travnik
“feels really bad about what happened. He needs a job.”
Spadaro agreed to meet.15
A week before Christmas 2004, Spadaro, Sayre, and Travnik
met at the Bob’s Big Boy Restaurant in Valley View, Ohio, close
to the local union hall. All three participants in the meeting testi-
fied and gave somewhat different accounts of the meeting.
Travnik testified that Spadaro came in and sat down at a ta-
ble with Travnik and Sayre and said:
“let’s cut through all the bullshit. You filed too many fuckin’
grievances. You’re, you know, you’re killing me with these
grievances. There’s just too many of them.” I told him that I
didn’t feel that I was filing too many grievances. He told me,
“well you are. They’re always—they’re all over my desk.”
And I said well I didn’t feel that I was. He said, “you know,
if I go to bat for you and try to get you back and talk to this
corporate guy, whose name I don’t remember, that are you
going to kill me with these grievances, you know, be running
around like an asshole.” And I told him no that I would cut
back on my grievances and I also mentioned that the place
was, had been a nicer place since, you know, he had come
back. Friendlier, I guess.
Travnik testified that this was the sum of the conversation
and at that point “Larry and Mike started talking about some
Local [Union], some stuff going on at Sysco but that was it”
regarding his reinstatement. Travnik estimated that the conver-
sation lasted between 15 and 30 minutes.
Spadaro gave a slightly different account of the conversa-
tion:
Larry thanked me for coming. Jeff talked pretty
much—said he was sorry about what had happened. He,
once again, stated some of the problems he was going
through. And actually I kind of understood some of them
with his mother-in-law and I had some mother-in-law
problems so we talked. He wanted me to get involved
personally.
I talked to Jeff and I told him that since they wanted
me to do them a favor and stick my neck out for them that
I would expect him to bust his ass. I would expect him to
do whatever the Company needed. I would expect him if
we need to work overtime he’d work overtime. I told him
that I didn’t want him to make an asshole out of me. I
didn’t want him to write any stupid fuckin’ grievances. I
expected him to be a real asset to the Company and not
make a fool out of me.

15 In his testimony, Spadaro repeatedly stressed—with and without
prompting by counsel and to an extent that his preparation on this score
was transparent—that the meeting occurred because “Larry Sayre
asked me if I would do him a favor.” (Tr. 479.) (“Larry said look
would you do me a favor, would you meet with me and Jeff outside of
work just to hear what he has to say” (Tr. 479–480); “This was not
something that I was doing for the Company or as a Company repre-
sentative. I did it as a favor to Larry” (Tr. 483); “I went there as a favor
and they wanted me to get involved” (Tr. 483) “I talked to Jeff and I
told him that since they wanted me to do them a favor . . . .” (Tr.
146.).) Spadaro also declared that the meeting was not “authorized” by
Sysco. (Tr. 480.) As discussed infra, I do not believe that this testi-
mony can immunize Respondent from responsibility for Spadaro’s
statements.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
On cross-examination, Spadaro initially denied saying that
he actually told Travnik to “forget about those stupid fucking
grievances,” but admitted it when confronted with an affidavit
he previously provided to the Region that contained that state-
ment. Spadaro said he “forgot he said forgot.”16 Spadaro testi-
fied that Travnik acceded to his “spiel”: “Jeff said that he
would bust his ass, he’d do what he needed to do.”
Sayre also testified about the meeting. He professed to re-
member little. Sayre testified that Travnik said, “[t]hanks for
having the meeting. Let’s see if we can move forward with all
of this and put it behind us.” Sayre said that he asked Spadaro
if he could talk to Gary Tomes—a Sysco manager that Sayre
believed responsible for rehiring Spadaro—about getting Trav-
nik “back in the door.” Sayre testified that Spadaro said, “he’d
see what he can do.” Sayre could not recall any reference to
Travnik’s grievance-filing activity. He did not recall Spadaro
setting any conditions for helping Travnik get his job back. He
did not recall Spadaro warning Travnik that if he “stuck his
neck out for him” that Travnik should not embarrass him.
Sayre did not recall Travnik trying to explain or justify excess
breaks or lunches. Sayre did not recall Travnik saying anything
about being sick at work.
Travnik was not reinstated. Some time after his meeting
with Sayre and Travnik, Spadaro approached Cook and told
him that the Union was pushing hard to have Travnik rein-
stated. Cook’s response was that Travnik had violated work
rule 1-4, that Sysco had terminated others for similar incidents,
and there was no reason to alter the discharge. That was the
end of the matter.
F. Credibility Resolutions Regarding the
Restaurant Meeting
As to this meeting, none of these three witnesses were entirely
satisfactory. Sayre remembered nothing with regard to the key
comment—Spadaro’s reference to Travnik’s grievance-filing
activity—or much of anything else, despite the fact that Travnik
and Spadaro both testified to a version of the grievance-filing
comment. I have no doubt that it was said, indeed, Spadaro ad-
mits it. I am cognizant that the trial in this case—but not the
restaurant meeting—occurred long after the Union had decided
not to take Travnik’s case to arbitration and long after Travnik
had brought—and then dismissed—legal action in Federal court
that necessarily implicated the Union’s handling of his grievance
and refusal to proceed to arbitration.17 This lawsuit—along with
a reticence to stir up long settled labor-management decisions

16 I think the variance in testimony is without significance.
Spadaro’s initial testimony—that he didn’t want Travnik “to write any
stupid fuckin’ grievances”—is no more exculpatory and no less damag-
ing than his subsequent admission that he said Travnik should “forget
about those stupid fucking grievances.”
17 Travnik had wanted the Union to take his grievance to arbitration.
Ultimately he filed, but then voluntarily dismissed a 301 (29 U.S.C. §
185) lawsuit against Sysco for his termination. Given that the labor
agreement’s grievance arbitration procedure was intended to provide
the remedy for breaches of that contract, in order to succeed in his
Section 301 suit Travnik was required to prove that the Union breached
the duty of fair representation it owed to him. See Vaca v. Sipes, 386
U.S. 171, 185–187 (1967).
(from the Union’s perspective)—may have contributed to a lack
of effort by Sayre to struggle to recall the details of the conversa-
tion. And yet I do not discount Sayre’s testimony in the follow-
ing sense. Absent the conclusion that the Union was conspiring
with Sysco to allow Travnik to be illegitimately discharged, or
otherwise to breach its duty of fair representation to Travnik—
propositions for which there is no evidence and for which the
calling of the restaurant meeting is itself evidence to the con-
trary—I think that Sayre’s lack of memory suggests that what
was said at the meeting was not particularly shocking or offen-
sive to him as a union representative.
With that in mind, I consider Travnik’s account. Unlike his
detailed and specific account of his—comparatively innocu-
ous—encounters with Vice President Cook, Travnik recalled
less about the meeting with Spadaro. All he recalled was
Spadaro’s comment about his grievance-filing. In Travnik’s
version of the meeting Spadaro had no other complaint, and
rushed to “cut through all the bullshit” and complain about
Travnik’s grievance filing. It was the beginning and end of the
discussion. I thought that on this score, Travnik’s testimony
was not impressive, both in demeanor and recollection of de-
tail. The specificity and detail that Travnik provided regarding
the encounters with Cook are in contrast with the truncated
account he gave of his postdischarge meeting with Spadaro.
While the incidents with Cook were important, they were not as
important to Travnik as the meeting with Spadaro, they oc-
curred without notice, and they happened nearly three times as
long ago as the postdischarge meeting with Spadaro.
I also believe that if Spadaro’s comments had been as fo-
cused on grievance filing as testified to by Travnik, Sayre
would have taken notice, and Sayre would have reacted. But
Sayre remembers nothing about it and neither Travnik nor
Spadaro recall Sayre commenting on or reacting particularly to
anything Spadaro said. There also some reason to doubt the
plausibility of the testimony. Spadaro had only returned in
September 2004 to Sysco. The bulk of Travnik’s grievance-
filing activity had ended in May. By the end of that month he
had filed 14 grievances. Excluding his discharge grievance,
Travnik filed only three more grievances (where he was sole or
lead grievant) after May. The evidence shows that Travnik’s
grievances were routinely responded to within a week or two.
(The labor agreement requires a response within 2 weeks.)
Many appear to be over relatively small matters and probably
did not go on to a grievance hearing. Respondent’s Exhibit 18
at page 11 lists only three Travnik grievances among the group
in 2004 for which there was a grievance hearing response (and
one of those obviously was his discharge grievance). The bulk
of Travnik’s grievances were dealt with by the time Spadaro
returned to Sysco. In May or June, Travnik’s grievances were
“all over [somebody’s] desk,” but by September when Spadaro
returned to Sysco, and particularly by December when the
meeting occurred, it seems unlikely that these grievances were
a pressing problem for Spadaro.
Spadaro was not the perfect witness either. There was an in-
formality to him—during the testimony and throughout the
hearing—that was unusual. He may have just been uncomfort-
able and overcompensating for it. After all, I am sure it was
not lost on Respondent or on Spadaro, that absent Spadaro’s
SYSCO FOOD SERVICES OF CLEVELAND 1033
comments to Travnik at the restaurant, it is unlikely that a com-
plaint would have issued in this case. Indeed, a charge may
never have been filed. Having said this, his demeanor was not
inconsistent with what appeared to be forthright testimony.
Spadaro had obviously thought a lot about what was said at the
meeting and his testimony gave a fuller account of the meeting
than any other witness. Both in his testimony and affidavit
from June 2005, Spadaro did not deny the substance of the
comment that is the lynchpin of the General Counsel’s case. If
his version did not highlight Travnik’s grievance-filing as
much as Travnik’s neither did it whitewash it. In other words,
if Spadaro was lying he would have either denied the comment
altogether, or offered something less objectionable than telling
Travnik to stop “writing” or to “forget about” his “stupid fuck-
ing grievances” (phrasing that is not something one invents to
escape liability and that was not testified to by any other wit-
ness). I credit Spadaro’s account. His version is different from
Travnik’s in two significant ways: the comment regarding
Travnik’s grievance-filing is less lengthy and part of a list of
items which he admonished Travnik to correct if Spadaro was
going to go to bat for him, not the only thing mentioned. While
it is not reasonable to believe that Spadaro recalled everything
from the meeting,18 I believe his account most accurately and
fully captures the gist of what was stated.
IV. ANALYSIS AND CONCLUSIONS
A. The Independent 8(a)(1) Allegation: The Meeting at Bob’s
Big Boy Restaurant
Section 8(a)(1) of the Act provides that “[i]t shall be an un-
fair labor practice for an employer to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in
section 7 [of the Act].” 29 U.S.C. § 158(a)(1). Section 7 of the
Act protects employees’ right to engage in “concerted activity”
for the purposes of “collective bargaining or other mutual aid
or protection.” 29 U.S.C. § 157. “No one doubts that the proc-
essing of a grievance” under a collective bargaining agreement
“is concerted activity within the meaning of § 7” (NLRB v. City
Disposal Systems, Inc., 465 U.S. 822, 836 (1984)), and there-
fore it is violative of the Act to interfere, restrain, or coerce
employees in their grievance-filing activities. Yellow Trans-
portation, Inc., 343 NLRB 43, 47 (2004); Prime Time Shuttle
International, 314 NLRB 838, 841 (1994).
The Government alleges that Spadaro’s statements to Trav-
nik at the December 2004 meeting with Travnik and Sayre at
the Bob’s Big Boy Restaurant violated Section 8(a)(1) of the
Act. As discussed, Spadaro admitted that he told Travnik that
in order for Spadaro to attempt to have Sysco reinstate Travnik,
Travnik would have to, among other things, “forget about those
stupid fucking grievances.” This demand that Travnik agree to
forego (or limit) protected, concerted activity as a condition for
Spadaro initiating an effort to seek Travnik’s reinstatement
would reasonably—obviously, I think—tend to interfere with
the free exercise of employee rights, and therefore is violative

18 For instance, both Sayre and Travnik, but not Spadaro, referenced
mention of a Sysco corporate figure with whom Spadaro was going to
discuss Travnik’s reinstatement.
of Section 8(a)(1).19
Respondent contends that Spadaro’s remark should not be
found to be a violation of the Act because Spadaro often uses
profanity, neither Travnik nor Sayre took offense, and what he
meant by the “stupid” grievance comment was a reference to a
specific grievance filed many years ago. However, in deter-
mining the coerciveness of a remark, the Board applies an ob-
jective standard of whether the remark reasonably tends to
interfere with the free exercise of employee rights. The Board
does not consider either the motivation behind the remark or its
actual effect. Miller Electric Pump & Plumbing, 334 NLRB
824, 825 (2001); Joy Recovery Technology Corp., 320 NLRB
356, 365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998). Thus,
Spadaro’s intention or purpose in making his comment to Trav-
nik is irrelevant.20
There is also no merit to the contention that Spadaro’s com-
ment at the meeting cannot be the basis for an unfair labor
practice violation because the comment was made in “com-
promise negotiations” and therefore is inadmissible pursuant to
Federal Rule of Evidence 408. Not only did Respondent fail to
preserve this objection at trial, but settlement discussions are
inadmissible only to prove liability for the matter being settled.
Rule 408 does not apply to an alleged wrong committed in the
course of settlement discussions, and it does not apply to a
statement relevant to claims other than those being settled in
the discussions.21 Spadaro’s statement is both. His comment at
the meeting is an 8(a)(1) violation and it is relevant to the
8(a)(3) allegation, neither of which was a subject of the parties’
settlement efforts.22

19 See, e.g., Davey Roofing Co., 341 NLRB 222, 224, 238 (2004)
(unlawful for supervisor to tell employee discharged for cause that he
could help him get his job back if he took his name off union petition);
East Texas Pulp & Paper Co., 143 NLRB 427 (1963) (unlawful to
pressure former employees to withdraw grievances by conditioning
employment recommendations on withdrawal of grievances), enfd. 346
F.2d 686 (5th Cir. 1965).
20 Over the objection of counsel for the General Counsel I permitted
Spadaro to answer a question posed to him by Respondent’s counsel
regarding what he “meant” by his comment. I permitted the answer
because I believed it potentially relevant to the 8(a)(3) discharge allega-
tion, but it is irrelevant to the 8(a)(1) violation that occurred at the
restaurant.
21 Lenox Hill Hospital, 327 NLRB 1065, 1067 fn. 4 (1999) (Rule
408 does not bar grievance settlement discussions offered in unfair
labor practice proceeding to show relevance of union’s information
request to grievance); Miami Systems Corp., 320 NLRB 71 fn. 2 (1995)
(“evidence of threats made . . . during informal grievance settlement
discussions . . . is not inadmissible under Rule 408 of the Federal Rules
of Evidence”), enfd. in relevant part sub nom. Uforma/ Shelby Inc. v.
NLRB, 111 F.3d 1284, 1293–1294 (6th Cir. 1997) (assuming Rule 408
applies “we hold that Rule 408 does not exclude evidence of alleged
threats to retaliate for protected activity when the statements occurred
during negotiations focused on the protected activity and the evidence
serves to prove liability either for making, or later acting upon, the
threats”).
22 For reasons that elude me Respondent relies upon Miami Systems,
supra, in support of its argument. That decision unequivocally rejects
Respondent’s position. Respondent also cites Contee Sand & Gravel,
274 NLRB 574 (1985), which involved an alleged refusal to sign new
labor agreements. The Board refused to admit evidence of past settle-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
Finally, I also do not accept Respondent’s contention that
Spadaro’s comments cannot be imputed to Respondent on the
(assiduously emphasized) grounds that he attended the meeting
as a “favor” to Sayre and Travnik, that the meeting was “off the
record,” and his attendance not “authorized.” The characteriza-
tion of this meeting as a “favor” cannot change the fact that this
meeting was initiated by a union representative with an em-
ployer representative who had supervisory and labor relations
responsibilities. The meeting was called and attended for the
sole purpose of discussing the subject of an employee’s dis-
charge and the possibility of the employee’s reinstatement. Not
that it would necessarily matter, but it is not the case that the
three accidentally met at a charitable, social, or other nonwork
event and had a casual conversation about Travnik’s discharge.
Travnik’s discharge was the reason for the meeting. The meet-
ing was called with Spadaro precisely because of his indisputa-
bly supervisory and agency status with Respondent. He was
not the only or ultimate decision maker in Travnik’s discharge,
but he initiated the investigation into Travnik. And it was
Spadaro’s recommendation that Travnik be terminated that was
the basis for the Company’s action, after review and approval
of the recommendation by upper management. His boss Cook
admitted that Spadaro had the authority to recommend an em-
ployee’s reinstatement and “make a case” for the employee.
The fact that this labor relations meeting was not part of the
standard grievance process and that Spadaro had no contractual
obligation to attend the meeting is irrelevant. Labor relations is
not practiced in regimented fashion, and the outcome of a
grievance procedure is often the product of many types of
meetings, formal and informal. Respondent’s responsibility for
its supervisor’s labor relations conduct is not limited to meet-
ings that someone higher up specifically knows about in ad-
vance.23

ment discussions intended to settle a previous unfair labor practice.
The previous unfair labor practice concerned the respondent’s failure to
honor collective-bargaining agreements. In those circumstances, the
Board found “that the alleged new collective-bargaining agreements
were so closely intertwined with the unfair labor practices then under
discussion that they cannot be separated therefrom” and Rule 408
barred the discussions from being used against the employer.
Spadaro’s discussions with Travnik and Sayre were for the purpose of
settling a contractual grievance, i.e., a breach of contract claim. The
settlement of unfair labor practices was not under discussion. Indeed,
at the time, as Respondent otherwise emphasizes in its defense, there
had not even been an assertion of discriminatory motive for the dis-
charge.
23 Glenroy Construction Co., 215 NLRB 866, 867 (1974) (employer
violated Act based on supervisor’s unauthorized and “personal” state-
ment to employee that “he” did not want employee back to work be-
cause of Board charges filed by employee, even though employer was
willing to reinstate employee and was waiting for employee to return to
work), enfd. 527 F.2d 465 (7th Cir. 1975). Accord, Ideal Elevator
Corp., 295 NLRB 347 (1989) (“the Board continues to hold that under
Sec. 2(13) of the Act ‘an employer is bound by the acts and statements
of its supervisors whether specifically authorized or not.’” Quoting
Dorothy Shamrock Coal Co., 279 NLRB 1298, 1299 (1986), enfd. 833
F.2d 1263 (7th Cir. 1987); Triangle Sheet Metal Works, 238 NLRB
517, 520 (1978) (“even though Biegler’s comments were not author-
ized by higher management, he plainly was a supervisor and an agent
of Respondent within the meaning of the Act and, therefore, his con-
Spadaro spoke as a representative of Sysco. That does not
mean that he was in a position to offer reinstatement to Travnik,
but he warned Travnik that if he wanted to have a chance of rein-
statement, and if he wanted Spadaro’s assistance to that end, he
would have to “forget” about grievance filing (at least forget
about filing “stupid” grievances). This would reasonably tend to
interfere with the exercise of rights protected by Section 7.
B. The 8(a)(1) and (3) Allegation: Travnik’s Discharge
As discussed, above, Travnik’s grievance filing activity was
protected by the Act. It is a violation of the Act to discharge an
employee in retaliation for filing grievances. Yellow Transpor-
tation, Inc., supra; LB&B Associates, Inc., 340 NLRB 214
(2003).
The Government contends that the Travnik’s exercise of his
protected right to file grievances motivated Respondent to dis-
charge him. Respondent denies this and contends that its dis-
charge of Travnik was legitimately motivated. It claims that it
fired him because he violated work rule 1-4.
The Supreme Court-approved analysis in 8(a)(1) and (3)
cases turning on employer motivation was established in
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See NLRB v.
Transportation Management. Corp., 462 U.S. 393, 395 (1983)
(approving Wright Line analysis). In Wright Line the Board
determined that the General Counsel carries the burden of per-
suading by a preponderance of the evidence that the em-
ployee’s protected conduct was a motivating factor, in whole or
in part, for the employer’s adverse employment action. Proof
of such discriminatory motivation can be based on direct evi-
dence or can be inferred from circumstantial evidence based on
the record as a whole. Robert Orr/Sysco Food Services, 343
NLRB 1183, 1184 (2004); Embassy Vacation Resorts, 340
NLRB 846, 848 (2003).24 Such a showing proves a violation of
the Act subject to the following affirmative defense available to
the employer: the employer, even if it fails to meet or neutralize
the General Counsel’s showing, can avoid the finding that it
violated the Act by demonstrating by a preponderance of the
evidence that the same adverse employment action would have
taken place even in the absence of the protected conduct. For
the employer to meet its Wright Line burden, it is not sufficient
for the employer simply to produce a legitimate basis for the
action in question. It must “persuade” by a preponderance of
the evidence that it would have taken the same action in the
absence of protected conduct.25

duct is legally attributable to Respondent” ); Fotomat Corp., 199
NLRB 732, 733 (1972) (supervisor’s statement that he “would not
doubt the Company would go [as] far” as to close plant in response to
unionization was attributable to management).
24 “To support an inference of unlawful motivation, the Board looks
to such factors as inconsistencies between the proffered reasons for the
discipline and other actions of the employer, disparate treatment of
certain employees compared to other employees with similar work
records or offenses, deviations from past practice, and proximity in
time of the discipline to the union activity.” Robert Orr/Sysco Food
Services, supra.
25 NLRB v. Transportation Management, 462 U.S. 393, 395 (1983)
(rejecting employer’s claim that its burden is met by demonstration of a
SYSCO FOOD SERVICES OF CLEVELAND 1035
Turning first to General Counsel’s initial burden, to carry his
burden the General Counsel must show “‘(1) that the employee
was engaged in protected activity, (2) that the employer was
aware of the activity, and (3) that the activity was a substantial
or motivating reason for the employer’s action.’” Naomi Knit-
ting Plant, 328 NLRB 1279, 1281 (1999) (quoting FPC Mold-
ings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314
NLRB 1169 (1994)).
Here, there is no doubt that Respondent was aware of Trav-
nik’s grievance filing activity. Respondent knew of it because
grievances are presented to and considered by supervisors.
Notwithstanding the testimony of Respondent’s witnesses that
no records were kept tracking individual grievance filings,
naturally there was a file for each grievance in Respondent’s
possession and on Knull’s computer these files were denomi-
nated by the name of the principal employee grievant. (R.
Exhs. 8–12). The grievances filed by Travnik were titled
“Travnik” in the computer folder devoted to grievances. Of
course, apart from routine consideration of Travnik’s griev-
ances (along with hundreds others) it is clear that Respondent
was specifically aware of Travnik’s grievance-filing activity
because, as I have found, Cook told Travnik so in June and July
2004 and so did Spadaro at the Bob’s Big Boy in December
2004. Spadaro’s comment—to the effect that among the range
of things necessary for Spadaro to “stick [his] neck out” for
Travnik was Travnik’s agreement to stop filing “stupid fuckin’
grievances” obviously reflects consciousness of Travnik’s his-
tory of filing grievances.
There is also evidence that Travnik’s grievance-filing activ-
ity provided a motivation for Travnik’s discharge, specifically
Spadaro’s postdischarge statement to Travnik at the restaurant
and Cook’s comments in June and July to Travnik about his
filing of grievances.26

legitimate basis for the discharge); Carpenter Technology Corp., 346
NLRB No. 73, slip op. at 8 (2006) (The issue is, thus, not simply
whether the employer “could have” disciplined the employee, but
whether it “would have” done so, regardless of his union activities).
Weldun International, 321 NLRB 733 (1996) (“The employer cannot
carry this burden merely by showing that it also had a legitimate reason
for the action, but must persuade that the action would have taken place
absent protected conduct by a preponderance of the evidence”) (internal
quotation omitted), enfd. in relevant part 165 F.3d 28 (6th Cir. 1998).
26 I do not include McDonald’s comments to Travnik in this list.
That a supervisor would occasionally say things like “[n]ot another
one” and “[o]h geez what did I do now,” is just so much shop talk. In
this context it is not evidence of animus toward protected activity. The
Act does not require a front-line supervisor to like getting grievances.
They are, after all, complaints about management conduct. Travnik
agrees that McDonald always handled the grievances appropriately and
processed them correctly. The comments, for which no time period or
other detail was provided, do not add anything to the General Counsel’s
case. Witnik’s 1999 note responding to a grievance filed by Travnik is
worth considering in this regard. It expresses obvious irritation and
disdain for the merits of the grievance that Travnik is filing. Such
frustration is potentially a catalyst for unlawful animus, but it does not
amount to evidence of it. A vital collective-bargaining relationship
frequently, perhaps necessarily, will involve some contention and frus-
tration with the other side. Witnik and McDonald’s comments reflect
that. More important and probative, is that Travnik’s grievances were
always processed.
Cook is a senior management official of Respondent, and his
comments to Travnik are not to be taken lightly. Cook’s com-
ments, at a minimum, belie the nonchalance with which Re-
spondent claims it viewed Travnik’s grievance filing. His June
comment to Travnik expressly linked Travnik’s grievance fil-
ing to the suggestion that he “find work somewhere else.”27
Spadaro’s comment indicated a dislike of Travnik’s grievance
filing activities and a willingness—equipped with the leverage
provided by the discharge—to pressure him to stop it. That
constitutes direct evidence of animus toward specific protected
conduct, by a supervisor directly responsible for the decision to
discharge Travnik. I believe that Spadaro was speaking can-
didly and (as Respondent emphasizes) “off the record” to Trav-
nik at the restaurant meeting. He was being asked by the Union
and Travnik to make an effort on Travnik’s behalf. Spadaro
had recommended Travnik’s discharge, and his response
clearly suggests a consciousness and dislike of his grievance
filing, and a willingness to seize the opportunity to chastise
Travnik for it. The fact that Spadaro believed (and conveyed)
that a reformed Travnik—one who promised, among other
things, to curb or forego grievance-filing—would be a more
attractive candidate for reinstatement provides a strong basis
from which to infer that the decision-making process in Trav-
nik’s discharge involved consideration of his grievance-filling
activity.
At least to some degree. Neither Spadaro’s conversation
with Travnik, nor the evidence generally, suggests that Trav-
nik’s grievance-filing activity was the sole or main reason for
the discharge. Indeed, the larger picture calls into question the
extent of Travnik’s grievance-filing as a motive for the dis-
charge.
In this regard (and these points are discussed in more depth
below in consideration for Respondent’s defense), I think that
Respondent’s regular, copious, and (by all evidence) uneventful
processing and handling of grievances is relevant. The plant
had 418 grievances in 2004. Respondent went to some length
at trial to demonstrate that it does not avoid its contractual or
statutory obligations with regard to grievances. Aside from the
cited evidence regarding Travnik, no evidence of animus to-
ward grievance-filers specifically or generally exists on the
record and there are other employees with a significant record
of filing grievances. Indeed, many of the circumstantial indicia
from which the Board typically infers unlawful motivation
were not part of the General Counsel’s case. For instance, the
timing of the discharge was not closely linked to Travnik’s
protected activity. He filed 14 grievances between January and
May 2004 but had filed only 3 from June to October before
being discharged in November, 2004. The employer’s prof-
fered explanation for Travnik’s discharge remained consistent
from the initial investigation to discharge. I do view Respon-
dent’s treatment of Travnik as harsh, particularly for a 15-year
employee whose work was generally praised by Respondent’s
witnesses, but in the context of Respondent’s repeated applica-

27 The General Counsel does not contend that Cook’s comment vio-
lated the Act—presumably because of 10(b) concerns—and therefore I
do not find a violation. See, however, Chinese Daily News, 346 NLRB
No. 81, slip op. 1 & 14 (2006).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
tion of a rule that explicitly provides for discharge upon the
first violation, the treatment of Travnik while harsh, is not so
harsh—or, more to the point, out of line with Respondent’s
practices—that it invites suspicion that it was a pretext for dis-
criminatory motive.28
In sum, on this record, I believe that the General Counsel has
met his initial burden, but the evidence establishes only that anti-
union animus contributed a minor part of the decision to dis-
charge Travnik. Of course, as explained, supra, under Wright
Line, a discharge motivated even in small part by unlawful con-
siderations is unlawful, subject to the employer’s demonstration
that in the absence of protected activity the adverse employment
action would have been taken anyway. However, logically, the
force of the General Counsel’s initial showing is directly related
to the force of evidence required by the employer to meet its
burden. Where the General Counsel has made the case that anti-
union animus loomed large as a motive for the discharge, the
Respondent’s burden to show it would have taken the same ac-
tion in the absence of protected activity is “formidable.” Garvey
Marine, Inc., 328 NLRB 991, 992 (1999), enfd. 245 F.3d 819
(D.C. Cir. 2001); Alterman Transport Lines, 308 NLRB 1282,
1293 (1992). The converse is also true. Where, as here, the
General Counsel initially makes a showing that protected con-
duct was a motivating factor—but not a large factor—the Re-
spondent’s burden to show that the adverse action would have
occurred in the absence of protected activity, is lighter. In this
case, Respondent has met that burden.
First, Respondent’s asserted reason for discharging Trav-
nik—violation of work rule 1.4—was consistently maintained
at all times. It never deviated at any point in the discharge and
grievance process from the position that the basis of the dis-
charge was a violation of work rule 1.4 based on excessive
breaks and lunches. Excessive bathroom time was noted, but
ultimately not relied upon in deference to Travnik’s contentions
that illness caused significant vomiting and diarrhea during this
time. Moreover, no evidence was presented that other employ-
ees found in violation of work rule 1-4 were not discharged. In
each instance where an employee was discharged for 1-4, but
reinstated, Sysco witnesses credibly explained that the griev-
ance procedure or Sysco’s own investigation uncovered evi-
dence from which Sysco concluded that there was not a viola-
tion. Similarly, when videotaping of an employee suspected of
a work rule 1-4 violation revealed that there was not one, the
employee was not discharged. Obviously, such examples not
only undercut any contention that these employees’ reinstate-
ment evidences discriminatory treatment of Travnik, but also
highlight the effectiveness of the grievance procedure (or the
employer’s investigation to prepare for it) to uncover and rem-
edy cases where Sysco’s actions were vulnerable. In this case,

28 “Although the Board cannot substitute its judgment for that of an
employer and decide what would have constituted appropriate disci-
pline, the Board does have the role of deciding whether the employer’s
proffered reasons for its action is the actual one, rather than a pretext to
disguise antiunion motivation.” Construction Products, Inc., 346
NLRB No. 60, slip op. at 7 (2006); Detroit Paneling Systems, 330
NLRB 1170 (2000); Uniroyal Technology Corp. v. NLRB, 151 F.3d
666, 670 (7th Cir. 1998).
the investigation and grievance procedure did not produce any
significant questions that could reasonably undermine Sysco’s
belief that Travnik violated work rule 1-4.
In this regard, a copy of the videotape relied upon by Sysco
was shown at trial and appeared consistent with log prepared
by Witnik and was consistent with the allegations against Trav-
nik made by Sysco. This includes the perception from the
video that at times Travnik was actively avoiding supervision,
instances that hardened the determination of individual Sysco
managers not to relent on the discharge penalty. (Tr. 368, 453,
562–564.) Just as there was no way for the Union or Travnik
to claim in the grievance procedure that the events on the tape
did not happen, or that it was not Travnik on the tape, or to cite
some other flaw in the tape that calls into question the accuracy
of the surveillance tape, the General Counsel is circumscribed
from effectively questioning Sysco’s motives based on the
content of the video footage.29
On brief, the General Counsel’s chief challenge is not to
Sysco’s analysis of Travnik’s conduct. Rather, the General
Counsel disputes Respondent’s position that Travnik was con-
tractually entitled to 70 minutes of break (including lunch) per
shift. The General Counsel contends that Travnik was contrac-
tually entitled to 88 minutes of break (including lunch) per
shift. If the General Counsel were right, it would reduce sig-
nificantly the extent of excess breaktime that Travnik took.
Under the General Counsel’s 88-minute break per shift calcula-
tion, Travnik’s excess breaktime amounted to 6 minutes on the
October 17 shift, no excess on October 18 or 19, and only 3
minutes excess on October 20. The difference in breaktime
calculation is rooted in the General Counsel’s (and Travnik’s)
view that Travnik was entitled to a 10-minute freezer break
each shift, as well as 3 minutes “travel time” added on to each
break he took during a shift. The difficulty with this argu-
ment—apart from the fact that none of Travnik’s breaks oc-
curred at the 3–1/2-hour mark in his shift when freezer breaks
were taken—is that it is an argument that is appropriate for an
arbitrator, but somewhat beside the point here. The question
for the Board is not whether Travnik violated work rule 1-4,
and its task is not to determine the appropriate amount of break
time under the contract. The question for the Board is whether
Sysco had a good-faith belief that Travnik violated work rule 1-
4, acted on that belief when they discharged him, and would
have done so even in the absence of his grievance filing.30

29 The General Counsel notes that the chapter menu titles on the
DVDs entered into evidence indicate dates (1/1/03 & 11/11/04) that are
not consistent with the dates the footage was recorded, or the date the
footage was transferred from the Multiplexor to the DVD. The most
likely explanation for this is that the Magnavox DVD system, which
was a new piece of equipment, had not been set to the correct date
when the DVDs were created. The wrong date on the DVD chapter
titles does not call into question the veracity of the video footage cop-
ied onto the DVDs. There is no suggestion by the General Counsel,
and no evidence, that the video footage itself, which carries a date and
second by second time marker contemporaneously recorded by the
multiplexor, is inaccurate.
30 As the Board explained in McKesson Drug Co., 337 NLRB 935,
936 fn. 7 (2002), “[i]n order to meet its burden under Wright Line (i.e.,
to show that it would have discharged the employee even in the ab-
SYSCO FOOD SERVICES OF CLEVELAND 1037
Certainly the bona fides of Respondent’s argument that Travnik
was discharged for a violation of work rule 1-4 would be called
into question by an outlandish contractual argument, or an ar-
gument that, for any combination of reasons, reflected poorly
on the subjective good faith of Respondent. But that is not the
case here. As to its contractual argument, Respondent’s posi-
tion that Travnik was not entitled to freezer breaks, whether or
not “correct,” appears sincerely and consistently held, is sub-
stantial, and it is not without significance that the other party to
the labor agreement, the Union, does not appear to have dis-
puted Respondent’s position in this regard.31 Similarly, Re-
spondent’s position that travel time is not available to employ-
ees in Travnik’s job and, in any event, is not additional break-
time for employees, was credibly explained. All evidence sup-
ports the conclusion that Respondent’s position was taken in
good faith, may, in fact, be correct, and again, there is no evi-

sence of protected activity), an employer need not prove that the em-
ployee committed the alleged offense. However, the employer must
show that it had a reasonable belief that the employee committed the
offense, and that it acted on that belief when it discharged him.” See
also Yuker Construction, 335 NLRB 1072 (2001) (discharge of em-
ployee based on mistaken belief does not constitute unfair labor prac-
tice, as employer may discharge an employee for any reason, whether
or not it is just, so long as it is not for protected activity); Affiliated
Foods, Inc., 328 NLRB 1107, 1107 fn.1 (1999) (it was not necessary
for employer to prove that misconduct actually occurred to meet burden
and show that it would have discharged employees regardless of their
protected activities; demonstrating reasonable, good-faith belief that
employees had engaged in misconduct was sufficient).
31 The labor agreement provides for 10-minute “freezer breaks” for
“freezer employees.” Travnik was a “freezer employee” in the sense
that he held a bid from the freezer bid job. However, Respondent’s
position is that freezer or “warm up” breaks” were permitted at the 3-
1/2-hour mark of a shift for employees who had been actually working
in the freezer for the shift. Travnik remained in his “freezer bid” posi-
tion even after April 2004 when, as the only third-shift returns em-
ployee, his responsibilities included all returns not just frozen returns.
He remained in his “freezer bid” position even at the new facility where
there was no freezer dock, and frozen returns were left on a cooled but
not frozen dock. Thus, notwithstanding his job bid, Travnik’s work
involved significant responsibilities and time in nonfreezer areas.
According to Sysco, Travnik was not entitled to freezer breaks, and this
was understood, as the purpose of and entitlement to freezer breaks was
to let people who had been in the freezer warm up. This was the posi-
tion Sysco took in the grievance procedure (it appears to have been
only briefly mentioned by Travnik). This is, of course, an archetypical
contractual interpretation dispute that would be grist for an arbitrator’s
mill, had the Union wanted to dispute Sysco’s position. However,
there is no evidence, either from the hearing in this matter, or the record
of the grievance proceedings, that the Union disagrees with Sysco’s
interpretation. There is also no evidence that Sysco’s interpretation
was inconsistently applied or insincerely held. No evidence suggests
that the breaks for which Travnik was fired were freezer breaks and
Sysco’s consistent testimony is that freezer breaks had nothing to do
with Travnik’s discharge. In sum, even assuming, arguendo, that an
arbitrator would side with Travnik and against Sysco on the question of
Travnik’s entitlement to freezer breaks, it does not advance the General
Counsel’s position in this case, because a good faith but erroneous view
of the contract does not help to show unlawful motivation for dis-
charge. I find that Sysco management believed that Travnik’s work
and position did not entitle him to freezer breaks, especially in the new
facility from which he was fired.
dence that the other party to the contract, the Union, disputes
Respondent’s interpretation.32 In sum, I find that Sysco be-
lieved in good faith that Travnik took excessive breaks and
lunch and in doing so violated work rule 1-4.
As I mentioned, supra, there is a harshness to the penalty
here given Travnik’s veteran employee status (15-1/2 years at
discharge) and, by all evidence, lack of a prior disciplinary
record. Yet, in comparison to the other employees terminated
for work rule 1-4 violations, it is hard to read too much into
this. At least some of the other employees also had significant
years of service at the time of their discharge (Shuster (15
years), Unkefer (24–1/2 years), Shields (10 years), and Wash-
ington (described as a “longtime” employee). For Travnik,
Sysco documented and based the discharge on less time “sto-
len” than for most other employees, but not for all (such as
Goodreau, although it is true that his discharge cited the length
of time to fill orders in addition to 1-4)), and the time of others
was not included on the record. While there are some individ-
ual variances, collectively the application of work rule 1-4 to
other employees displays a uniformity and continuity that sup-
ports Respondent’s defense. Great Lakes Window, 319 NLRB
615 (1995), enfd. mem. sub nom. Stallworth v. NLRB, 114 F.3d
(6th Cir. 1997). Particularly in the context of a rule that explic-
itly warns of discharge for a first violation, the harshness of
Travnik’s discharge is not suspect. To the contrary, Respon-
dent’s repeated discharge of other employees for violation of
work rule 1-4 adds weight to Respondent’s defense.33
Nor is there any evidentiary support for the General Counsel’s
suggestion that—based on his grievance filing—Travnik was
singled out for surveillance. The uncontradicted evidence was
that the investigation began when Dowd complained to Spadaro
that he couldn’t find Travnik on a shift when returns were heavy
and it appeared that work was not being performed. No evidence

32 A significant amount of testimony was devoted to explicating the
concept of “travel time.” Travel time as credibly explained by Sysco
witnesses is not extra time allotted for breaks, but instead, time that is
deducted from the denominator (if you will) when productivity calcula-
tions are made for those positions that were subject to engineered stan-
dards. Not only, by all evidence, was Travnik not on an engineered
standards job—and therefore not entitled to travel time—but even if he
were, according to Sysco it would not extend the time of his breaks. It
is not additional breaktime, but a factor incorporated into productivity
measures. However, again, as with freezer breaks, the ultimate disposi-
tion of this contractual dispute is beside the point, as there is no basis
for concluding that Sysco’s view on travel time was part of an effort to
disguise discriminatory animus towards Travnik.
33 Evidence shows that three employees were discharged for viola-
tion of Rule 1-4 in the 24 months before Travnik’s discharge and five
in the 16 months subsequent to Travnik’s discharge. The General
Counsel contends, without authority, that the evidence of employees
discharged for work rule 1-4 violations subsequent to Travnik’s dis-
charge is irrelevant. I disagree. I recognize that in certain circum-
stances subsequent discharges can be less reliable as comparators, and
in certain cases, could be evidence of unlawfully motivated stricter
enforcement of rules. But in either case the postdischarge comparators
are hardly irrelevant. Here, I draw the most likely conclusion: Respon-
dent consistently discharged employees for violations of work rule 1-4.
Without any further evidence, the fact that there was an increase in
work rule 1-4 discharges (five in 16 months versus three in 24 months)
after Travnik’s discharge is not a basis to infer misconduct.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
was presented that these events did not happen this way and, at
least in the case of whether Travnik was available when Dowd
was looking for him, Travnik would have been in a position to
contradict that were it not true. There is also uncontradicted
testimony that in past instances involving other employees,
videotape surveillance had similarly been initiated and relied
upon to discharge employees. I think that the evidence supports
the conclusion that the initiation of surveillance was not the result
of animus towards protected activity.
I think that the evidence relied upon by Sysco to discharge
Travnik provided the basis for a good faith belief that Travnik
violated work rule 1-4. And I find that in discharging Travnik
Sysco acted on that belief. Particularly in light of Cook and
Spadaro’s comments, it is easy to accept that Travnik’s griev-
ance-filing may have contributed to Respondent’s decision to
mete out the penalty of discharge and carry through with it in
the face of the Union’s grievance. However, I find that Sysco
has persuaded that it would have discharged Travnik even in
the absence of Travnik’s protected activity. This allegation of
the complaint should be dismissed.
CONCLUSIONS OF LAW
1. Respondent Sysco Food Services of Cleveland is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By telling Charging Party Jeffrey Travnik that he would
have to agree to limit or forgo grievance filing in order to be
considered for reinstatement, Respondent violated Section
8(a)(1) of the Act.
3. The unfair labor practices committed by Respondent af-
fect commerce within the meaning of Section 2(6) and (7) of
the Act.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Respondent Sysco shall post
an appropriate informational notice, as described in the Appen-
dix, attached. This notice shall be posted in Respondent’s fa-
cility or wherever notices to employees are regularly posted for
60 days without anything covering it up or defacing its con-
tents. When the notice is issued to Respondent, it shall sign it
or otherwise notify Region 8 what action it will take with re-
spect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended34
ORDER
The Respondent, Sysco Food Services of Cleveland, Inc.,
Cleveland, Ohio, its officers, agents, successors, and assigns,
shall
1. Cease and desist from

34 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(a) Telling employees that they must agree to limit or forgo
grievance-filing activity in order to be considered for rein-
statement.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action which is necessary
to effectuate the purposes of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cilities in Cleveland, Ohio, copies of the attached notice
marked Appendix.”35 Copies of the notice, on forms provided
by the Regional Director for Region 8, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Within 21 days after service by the Region, file with the
Regional Director of Region 8 a sworn certification of a re-
sponsible official on a form provided by the Region attesting to
the steps that the Respondent has taken to comply with the
provisions of this Order.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
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 tell employees that they must agree to limit or
forgo grievance-filing activity in order to be considered for
reinstatement.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
SYSCO FOOD SERVICES OF CLEVELAND 1039
SYSCO FOOD SERVICES OF CLEVELAND, INC.