US Foods, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 10, 2016

28-CA-156203 (N.L.R.B. Mar. 10, 2016)

JD(NY)–08-16
Phoenix, AZ
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
US FOODS, INC.
and Case Nos. 28–CA–156203
28–CA–160985
GENERAL TEAMSTERS (EXCLUDING MAILERS),
STATE OF ARIZONA, LOCAL UNION NO. 104, an
affiliate of the INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Kristin White, Esq. and Kyler Scheid, Esq., for the General Counsel.
Joseph Turner, Esq.and Karla Sanchez, Esq., Seyfarth Shaw LLP, for the Respondent.
DECISION
Statement of the Case
JOEL P. BIBLOWITZ, ADMINISTRATIVE LAW JUDGE. This case was heard by me in Phoenix,
Arizona on January 20 and 21, 2016. The consolidated complaint, issued on November 16,
20151 and was based upon unfair labor practice charges and an amended charge filed by
General Teamsters, State of Arizona, Local Union No. 104, an affiliate of the International
Brotherhood of Teamsters, (the Union), on July 17, September 23 and September 29; the
complaint was amended on January 14, 2016, pursuant to a Notice of Intent to Amend. There
are three 8(a)(1) allegations: it is alleged that on about July 12, US Foods, Inc. (Respondent),
by Albert Padilla, at its facility, threatened its employees with not being rehired, and that the
Respondent would not accept transfers to its facility because the employees engaged in union
and concerted activities; that on about July 28, by Keith LaPlant, threatened its employees by
telling them that they were removed from training duties because they engaged in union and
concerted activities; and on about October 5, by Michael Tavenner, threatened employees by
telling them that they would be discharged because they engaged in union and concerted
activities. Padilla, LaPlant and Tavenner are admitted supervisors and/or agents of the
Respondent. It is further alleged that the Respondent violated Section 8(a)(3) of the Act in April
by removing employee Ryan Proctor from training duties and by refusing to consider for hire, or
hire, Elliot Garrett on about May 27, because of their union or concerted activities. Finally, it is
alleged that on about July 28, the Respondent changed its practice of allowing union stewards
to participate in grievance meetings after the start of their scheduled shift, and be paid for the
time, without prior notice to, or bargaining with the, Union and in retaliation for the Union filing
an unfair labor practice charge, in violation of Section 8(a)(1) (4) and (5) of the Act.
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent admits and I find that it has been an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.

1 Unless indicated otherwise, all dates referred to herein relate to the year 2015.
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II. THE FACTS
The Respondent is a nationwide food distribution business. The facility involved herein,
which is located in Phoenix, services the State of Arizona and employs approximately 270 unit
employees, equally divided between drivers and warehousemen. The warehouse employees
work a day or night shift; the day shift employees, fewer in number than the night shift, receive
merchandise and replenish the stock. The night shift employees, who report to work at about 5
p.m., select and fill the orders and load the trucks for delivery to Respondent’s customers. The
employees involved in this matter are night shift employees. The Union has represented certain
of the employees of the Respondent, since about 2008 and the most recent collective-
bargaining agreement between the parties was effective from August 21, 2011 to June 1, 2015.
The parties agreed to an extension of this agreement, but on October 3, the Union wrote to the
Respondent that the membership had voted to turn down its latest contract offer and to
authorize a strike, although at the time of the hearing there had not yet been a strike. The
hierarchy at the facility is Joe Hefley, Vice President of Operations, Albert Padilla has been
operations manager since about October and was previously the routing department manager;
and Steve Hoyt had been the operations manager prior to Padilla. Below Padilla, in the
warehouse on the night shift are Supervisors Keith LaPlant, Jose Mojica, Alexis Alvarez and
“JD.” Prior to his employ at the Respondent’s Phoenix facility, Padilla was Operations
Supervisor for the Respondent at its Los Angeles, California facility, whose employees are
represented by a different Teamster local.
Ryan Proctor has been employed by the Respondent for about 12 years and is a
warehouse employee on the night shift. He was on the Union’s organizing committee, the
Union’s negotiating committee for the 2011 through 2015 contract negotiations, as well as the
present negotiations, and is presently one of three shop stewards at the facility. It is initially
alleged that in April, Proctor was removed from his training duties because of his union activities
and that on about July 28 LaPlant threatened its employees by telling them that they were
removed from training duties because of their union activities. In addition to his duties as a
warehousemen, in mid-2014, Proctor was selected to be a trainer of new employees at the
facility. This involved spending about 3 days with the new employee and showing them how to
operate the equipment and pick the food cases, although there was no additional pay for
performing this training work. Beginning in about April he stopped performing the training work
and when he asked LaPlant why he was no longer training new employees, LaPlant said that he
was just doing as he had been told. In July, he learned that another employee had been
removed from his training duties for using Federal Medical Leave Act (FMLA) and Proctor told
LaPlant that he couldn’t do that, and LaPlant reinstated the employee as a trainer. He testified
that later that day he asked LaPlant why he was removed from training and LaPlant said, “You
want me to be honest with you?” and Proctor said that he did and LaPlant said that it was
because of the position that he held. Proctor asked, “my position as a steward?” and LaPlant
said, “you got it.” Shortly after this conversation, Proctor memorialized it in his notebook.
LaPlant testified that he had no role in the selection of trainers and never told Proctor
that he was removed from training because of his position with the Union. In about July, Proctor
approached him during work and said that he had been brought down from training because of
his union activities and LaPlant responded that wasn’t what he was being told, that he heard
“. . . that we were having some issues with getting the stuff done properly and we had to try
something different because what we were doing wasn’t working.” Hefley testified that for 2014,
the employee turnover rate for the night warehouse was 89 percent, which was the sixth worst
of the Respondent’s 62 facilities and that the records showed that most of the turnovers
occurred within the first 90 days of employment. Although he never heard any complaints about
Proctor’s training, he realized that they had to change the way that they recruit and train
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employees, and in early 2015, he told Hoyt to get new trainers for the facility. During this
period, employee Adrien James told him that he would like to be a trainer and Hefley found that
he “displayed leadership qualities” and chose him to be a trainer. He testified that Proctor’s
position with the Union played no part in the decision to remove him as a trainer and, in fact, he
has seen James wearing a union T-shirt. In 2015, the turnover rate was reduced to 46 percent,
or 25th out of 62.
Elliot Garrett was employed by the Respondent as an order selector from April 2013 until
January when he was terminated for excessive absenteeism for exceeding the number of
permitted FMLA days. He testified that he was surprised at being terminated because he
believed that all of his absent days were covered by FMLA; no grievance or unfair labor practice
charge was filed regarding this discharge. On about May 27, he applied for employment at the
Respondent and that request was denied. It is alleged that the Respondent refused to reemploy
him because of his union activities and that on about July 12, the Respondent, by Padilla,
threatened its employees that they would not be rehired and that the Respondent would not
accept transfers from other facilities because of the employees’ union activities. While
employed by the Respondent Garrett was a member of the Union, wore a union T-shirt about
once a week and during startup meetings, he would “. . . holler. . .104.” In about May he saw
that the Respondent’s employees were working a lot of hours and he called Proctor to ask if he
could get him his job back and Proctor said that he would ask Padilla. A few days later, Proctor
told him that he had spoken with Padilla who said that he should put in the application “. . . and
that he would get it pulled.” On May 27, he received an email from the Respondent saying that
they had received his employment application and “. . . are currently reviewing your experience
and qualifications.” On the following day he received an email from the Respondent stating that
they “. . . are not moving forward with your application.” After receiving this email, he told
Proctor about it and Proctor told him: “That’s just HR, that Albert was still looking into it.” He
was not rehired and did not speak to any supervisor or manager about it.
Proctor testified that after he received the call from Garrett that he would like to return to
work for the Respondent, he went to Padilla’s office and asked him to check to see whether
Garrett was rehirable; he told him that he was in a car accident and was terminated for using
unapproved FMLA leave, but was a hard worker and a good guy and Padilla said that he would
check and get back to him. On about the following day, he asked Padilla if he had checked to
see whether Garrett was rehireable, and Padilla told him that he was going to check with a
supervisor to vouch for Garrett’s character and if it came back that he was a good person, then
he would tell Proctor to tell Garrett to put in an application and he would be hired. After leaving
Padilla’s office, Proctor met LaPlant and told him that Garrett was applying to be rehired and
that Padilla was checking on his character. LaPlant told him, “Great. I’ll vouch for him. Elliot is a
good dude, and a good worker.” Later that evening, Proctor met Padilla, who told him that
LaPlant vouched for Garrett’s character and that he should tell Garrett to put in an application
and to let him know when he does so. Shortly thereafter Garrett told him that his application
was denied and the next day he asked Padilla why it was denied and Padilla said that he would
get back to him. About a week later, on July 12, he spoke to Padilla just prior to the beginning
of the shift; fellow employees Antonio Hernandez and Damasus Hardin were present at the
time. Hardin began the conversation by asking Padilla how the job fair went on Saturday and if
Hardin’s friend, Angel Rodriguez, put in an application. Padilla responded that the job fair went
well, but he didn’t know if Rodriguez put in an application. Proctor then asked, “What’s up with
Elliot Garrett’s application? Have you checked on it?” Padilla responded, “Steve Hoyt told me
that he wouldn’t give Elliot a second chance because he was part of the Union and that he
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wouldn’t let two people transfer from the LA division because they were union also.”2 Proctor
looked at Hernandez and Hardin and asked: “Did he really say that?” They responded, “Yeah,
that’s crazy.” As he did with LaPlant’s alleged statement about his training duties, Proctor made
a note of Padilla’s statement in his notebook.
Hernandez, a forklift operator on the night shift, testified that on a Sunday during the
Summer, while waiting for the shift to begin, he was on the dock, in front of his forklift, with
Proctor and Padilla; Hardin was on his forklift about 10 feet away. He asked Padilla how the job
fair went on Saturday, and Padilla responded that it went well; about 70 applicants were there.
Hernandez then asked about Rodriguez and Padilla said that he didn’t know if he applied.
Proctor then asked him about Garrett’s employment application and Padilla said, “You know.”
Proctor said that he didn’t know and Padilla said, “They won’t even hire my boys from Cali
[presumably California] “and Proctor asked why not, and Padilla answered, “Because they’re
Union.” Padilla walked away and Hernandez asked Proctor, “That’s illegal, isn’t it?” and Proctor
said, “yes, that’s illegal.” Hardin, also a forklift operator, testified that on July 12, at about 5:00,
while on his forklift, he overheard a conversation between Padilla and Proctor and Hernandez;
Hernandez began the conversation by asking how the job fair went and Padilla said there was a
good turnout. Hardin then asked him about Rodriguez and Proctor asked about Garrett and
Padilla answered, “Hey, guys, they won’t even hire my guys from Cali.” Proctor and Hernandez
asked why, and Padilla said, “Come on guys, you know, they’re union.” Hardin then asked
Proctor, “Isn’t that against the law?” and Proctor said, “That’s a Labor Board charge right there.”
They looked at Hernandez and asked him if he heard what was said, and he said that he did.
Padilla testified that beginning in September, when he became the operations manager,
he became involved in the hiring of warehouse employees; prior to that time he was not
involved in hiring night warehouse employees. However, he was shown May 22 and June 9
employment applications that state that the information had been shared with him; he testified
that Julie Gaston, HR Coordinator, shares this information with Hoyt and supervisors, but that
he doesn’t remember receiving them. He also testified that he does not remember attending job
fairs on behalf of the Respondent prior to September; however, prior to September, he made
recommendations as to whether employees should be hired. In addition, employees have
recommended people that should be hired, and he has suggested that the employee tell the
prospective applicant to put in an application and, prior to September, he could pull or look at
that application, but he never has done so and has never requested that HR pull applications to
look at. Rather, he would tell the employee to send the individual’s names directly to Hoyt. On
June 12, he sent an email to Hoyt stating: “Can you get Julie to forward me these applications
please? Solid people. Elliot Garrett3, Martin Llamas.” He testified that he sent this email to Hoyt
because Proctor referred Garrett to him and said that he had put in an application; Padilla
replied that he would “follow up.” The purpose of the email was to get them seen by Hoyt. The
reason that he said that they were solid people was because Proctor had recommended him
and “. . . he wouldn’t just recommend just anybody.” Subsequently, he had a conversation with
Proctor about the fact that Garrett was not hired, but he cannot remember when it was, where it
was, or if anybody else was present: “All that was said was . . . his application got rejected.” In
answer to questions from counsel for the Respondent, Padilla testified that he never told Proctor
that Garrett was not being rehired because he was a member of the Union. In about July when
Proctor came into his office and asked if he had any updates on Garrett’s application: “At that

2 Proctor testified that he is aware that the employees at the Los Angeles facility are
represented by a union and that Padilla and others had transferred from the Los Angeles facility
to the Arizona facility.
3 This email was sent 2 weeks after Garrett was notified that he would not be rehired.
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time I told him that I believe his application was rejected due to his attendance.” He also
testified that he never told Proctor that he couldn’t even get employees from California
transferred. In fact, Juan Morales transferred from Los Angeles to Phoenix in 2014, at his
request, and Daniel Valenzuela, also from the Los Angeles facility, came to the Phoenix facility
in 2015, when they needed help.
Hoyt was the Director of Operations at the facility from April 2014 through October 2015;
he is presently deployment manager for the Respondent. He testified that night selectors are
initially hired as casual employees. The contract between the parties provides that there can be
a maximum of 12 casual employees at the facility; depending upon the employees’ work and
attendance, they are upgraded to full-time employees. He is not involved in the prescreening of
applicants and does not receive the applicants’ answers to the questions contained in the
application; that is the work of HR: “I don’t see the prescreening process.” He receives a small
hiring packet with a resume attached. When he received Padilla’s June 12 email, he didn’t pull
the applications; rather, he went to Gaston, but he does not remember whether he responded to
Padilla’s email or what occurred when he went to see Gaston. Hoyt testified that he never told
Padilla that he was not going to rehire Garrett because he was a union supporter and member.
Chad Murphy, who was the HR manager for the facility during the period in question,
testified to the hiring procedure at the facility:
The operations group determines that they need to hire a position. They contact the HR
Coordinator. She’ll post a position requisition that’ll go on to the website. Candidates
apply. And then she starts her process from there through the system.
After reviewing and screening the applications, she sends them to the department manager or
supervisor who determines if they want to interview the applicant. If they do, they tell Gaston,
who contacts the employee and schedules the interview.
Gaston, who performs the prescreening for all employees at the facility and is the most
knowledgeable about the initial hiring process, testified that the employment applications are
maintained on, and reviewed from, the Respondent’s computer system, Taleo. The application
contains numerous questions for the applicant to answer. The first eight questions are either
yes or no; for example, “Are you legally authorized to work in the United States?” with a side
notation that if the answer is yes, “The candidate passes”; if the answer is no: “The candidate is
disqualified” and “Have you ever been terminated for cause?” with a notation “To be verified” if
the answer was yes, and “The candidate passes” if the answer is no. The following 14
questions have notations of Required or Asset. If the applicant’s answer to an Asset question is
a positive one, “it would put them at the top of the list.” Gaston was asked about applicants who
had been terminated at their prior employment and if there was any difference depending upon
the reason for the termination. She testified: “If it was a previous US Foods employee . . . I
would check the system to see why they were no longer employed by US Foods. If it’s not a
previous US Foods employee, I would ask them.” Taleo uses the term terminated for employees
who left the Respondent’s employ, whether they were discharged or left voluntarily, so in those
situations she would ask the applicant the circumstances of the termination. Because the
program only gives the reason for termination for former employees at the Phoenix facility, if the
applicant worked at another of their facilities, she would contact that facility to learn the
circumstances of the termination. On July 30, 2014, she sent an email to another of
Respondent’s facilities asking: “Garrett Shephard has applied for a position as Night Warehouse
Selector at our Phoenix division. He worked for you from 10/31/11 thru 11/5/12. Can you tell
me why he was terminated and if he is re-hirable?” The response she received stated: “he was
a no call no show, so we would not rehire him.” She also testified:
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If it’s a former US Foods employee and they were termed for cause…they would be
ineligible for rehire. If it’s a non US Foods employee and they are qualified for the
position during my phone screen I’m going to ask them. So, if it’s serious, more than
likely they wouldn’t pass the background, but if it was attendance or something minor,
because I don’t know all different companies’ attendance policies, I may go ahead and
move them forward in the process and let the manager make that decision.
She testified to a situation in late January, early February where she rejected an applicant,
Octave Gwin, in Taleo for lacking the required qualifications and later that day, Supervisor
Gilbert Mendez told her that an employee told him that Gwin would be a good employee and
that he wanted to interview him. Because of this request, she changed Gwin’s status: “. . . that
he does have the basic qualifications when, in fact, he didn’t.” Garrett’s application review is
dated May 28; on May 29, she wrote: “Status changed to reject candidate. Does not meet basic
qualifications, Ineligible for rehire.” The reason she rejected his application was that he had
been terminated for cause by the Respondent. When she first began as HR coordinator, she
was told that the Respondent does not rehire anyone who has previously been terminated for
cause by Respondent’s Phoenix facility and, to her knowledge, no such applicant has been
hired. Further, no supervisor spoke to her about Garrett’s application before she made the
decision to reject it.
It is next alleged that the Respondent unilaterally changed its practice of permitting union
stewards to remain in the grievance meetings, and be paid for the time, even after the start of
their shifts, in violation of Section 8(a)(1)(4)(5) of the Act. The contract between the parties
contains a grievance procedure; Step 2 of this procedure provides that the grievant, the
business agent and the vice president of operations meet in order to attempt to resolve the
grievance. The contract also states that the stewards’ duties shall not interfere with the regular
schedule of work. Joshua Graves, the Union’s business representative, has been participating
in these grievance meetings for about 3 years. Most of the night-shift warehousemen begin
their shift at 5 p.m. and the grievance meetings for the night-shift employees usually begin at 4
o’clock. He testified that there are usually about two to four meetings a month and that about 98
percent of these meeting lasted for more than an hour, past 5 o’clock. From July 17 to July 21,
Graves and Hefley exchanged emails about proposed dates for grievance meetings; Hefley’s
email to Graves, dated July 20, states: “Tuesday at this point will not work. By chance, will
Thursday work? We would need to bump the time up as well as the crew starts at 5pm.” On
July 21, Hefley sent an email to Graves stating that they had agreed to meet on July 28 from 4–
5 p.m. and August 4 from 3:30–5 p.m. It also stated: “Also, I will need the stewards to be at the
shift start up meeting sharply at 5pm.” Graves testified that in a telephone conversation on the
prior day, Hefley told him that the stewards would no longer get paid for grievance meetings that
went past 5 o’clock and that they had to be on the floor for the start of their shifts at that time.
Graves responded that it had never been done that way; that stewards were always paid for
their time when the meetings went past 5 o’clock and Hefley responded that the stewards would
have to be on the floor at 5 o’clock.
Graves testified further that at the July 28 grievance meeting, Hefley told him that the
stewards at the meeting would have to be on the floor at 5 o’clock, when their shift began.
Graves responded that the practice had always been that the stewards were allowed to remain
at the meetings past 5 o’clock and were paid for the time after 5 o’clock, and asked why that
was changed. Hefley responded that they would not be paid. They began discussing the
grievances and at 5 o’clock, before the grievance discussions had concluded, Proctor and the
other steward, Frank Solis, left the meeting to go to work. On July 30, Graves wrote to Hefley:
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Per phone conversation with you and last grievance meeting on July 28, 2015 where the
Company informed the Union that stewards would no longer get paid for grievance
meetings and dealing with issues during their scheduled shift. This is a unilateral change
and failure to bargain with the Union over these changes. Please accept this letter as
official notification from Teamsters Local Union 104 demanding bargaining over these
changes.
The next grievance meeting was on August 4; between July 30 and that date he did not hear
from the Respondent regarding his request to bargain. At the beginning of the meeting, Hefley
said that the stewards would have to be on the clock working at 5 o’clock or they wouldn’t be
paid, even if the meeting went past 5 o’clock. Graves asked if he would respond to his request
for bargaining about it, and Hefley said that he didn’t have an answer for him at that time. The
meeting ended at 5 o’clock before the discussions had concluded, and Proctor and Solis left for
work at that time. By letter dated August 13, Hefley wrote to Graves:
I am writing in response to your July 30, 2015 letter in which you inaccurately
represented something I said to you. I did not tell you that union stewards would no
longer get paid for grievance meetings that extended into their shift. Please be advised
that, if and to the extent grievance meetings extend into a union steward’s shift, the
Company will continue to comply with past practice and pay the union steward for that
time. As no “unilateral change” has occurred I see no reason to meet to “bargain over
the change.”
Proctor testified that he has attended grievance meetings for 4 years and estimates that
about 90 percent went past 5 o’clock before they concluded the meeting. For all these
grievance meetings, except for the meetings on July 28 and August 4, he was paid for the time
that the meeting went past 5 o’clock. At those meetings, Hefley told them that they would no
longer go past 5 o’clock and, if they did, they would not be paid for that time. Because of that,
he left the meetings at 5 o’clock before the discussions had concluded. At the meetings
subsequent to August 4, he has been paid if the meetings went past 5 o’clock.
Hefley testified that at a bargaining session on May 27, there was a large stack of
grievance forms on the table and, at the conclusion of the meeting, Proctor pushed them toward
him and said that they were coming his way. In scheduling grievance meetings with Graves for
July and August, when he sent him an email saying that they needed to bump the time up
because the crew starts at 5 o’clock, he wrote that because there were a large number of
grievances to discuss and he wanted to have adequate time to do so; he did not want to have
“open ended meetings.” He testified that the July 28 meeting concluded at about 5:20 and
Proctor and Solis remained at the meeting until then and were paid for the 20 minutes that they
remained. He testified further that he never told Graves that the stewards would not be paid for
grievance meetings that extended into their shift.
The final allegation is that on about October 5, Michael Tavenner, transportation
manager, threatened its employees by telling them that they would be discharged because they
engaged in union and concerted activities. Jason Peterson, a driver employed by the
Respondent, testified about this allegation, although his testimony is extremely confusing. He
testified that on the morning after the Union’s strike vote, Tavenner approached him at the
facility and asked him if he would join him for a cigarette before lunch and Peterson said sure.
Tavenner said, “Come Wednesday, you know what’s going on?” Peterson replied, “Not really, I
don’t want to talk about it.” Tavenner said “something about some union guy wants another
guys job” and Peterson repeated that he didn’t want to talk about it. Tavenner said: “if a vote
doesn’t happen or something to do with people not coming to work that . . . people lose their
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jobs.” A few minutes later Tavenner said, “I won’t have a job.” When Peterson was asked to
recount the conversation as well as he could he testified:
His exact words…as I recall is we want—if this continues about people not showing up
for work or striking, that people will—I don’t want anyone to lose their jobs. And then he
just waited for a couple of seconds and said, “well, I don’t want to lose my job either.”
Tavenner did not testify.
In order to establish animus, Counsel for the General Counsel introduced into evidence
two pictures of Solis: one with him wearing a union shirt stating “Frank Solis selected this order”
and another, apparently the same picture, but without the union shirt and the caption. Padilla
testified that the first picture (with the union shirt) is a driver appreciation sheet that is placed on
the employee’s shipping pallets. All full-time warehousemen have such a picture, which is
placed on the container labels. The second picture (without the union shirt) was when he was
chosen as the Selector of the Month. On that occasion, his picture was displayed in the plant.
III. ANALYSIS
It is alleged that the Respondent violated Section 8(a)(1) of the Act on about July 28
when LaPlant told Proctor that he was removed from his training position because he was a
union steward. This is based solely upon the testimony of Proctor and is denied by LaPlant,
who testified that he told Proctor that he was removed from training because the company was
having some issues with getting it done properly and that they wanted to try something different.
This is in line with Hefley’s testimony that because the facility had a high turnover rate, they had
to make some changes in recruiting and training, unrelated to Proctor’s work as a trainer. After
observing and listening to their testimony, I credit LaPlant’s testimony. I found his testimony
more credible and believable than Proctor’s; it comports with Hefley’s testimony as to why they
made the change and I find it unlikely that he would make such a statement to Proctor, the
union steward, when 3 months earlier he told Proctor that he was removed from his training
duties because they wanted to try something different. I therefore recommend that this
allegation be dismissed. It is also alleged that Proctor was removed from his position as a
trainer because of his union activities, in violation of Section 8(a)(3) of the Act. Under Wright
Line, 251 NLRB 1083 (1980) the initial issue is whether Counsel for the General Counsel has
made a prima facie showing sufficient to support the inference that protected conduct was a
“motivating factor” in Respondent’s decision. If that has been established, the burden shifts to
the Respondent to establish that it would have taken the same action even in the absence of the
protected conduct. I find that Counsel for the General Counsel has not sustained her initial
burden. As I have discredited Proctor’s testimony regarding LaPlant’s alleged statement, there
is no evidence to support this allegation. Hefley’s testimony regarding the facilities high
turnover rate is a reasonable explanation for the change. Further, Proctor has been an active
union member, a member of the Union’s organizing and bargaining committees, and a union
steward since about 2008, and yet in 2014, the Respondent chose him to be a trainer with
knowledge of these activities. As there is no credible evidence that his union activities were a
motivating factor in the decision to remove him from his training duties, I recommend that this
allegation be dismissed4.

4 Counsel for the Respondent, in his brief, defends that the decision to remove Proctor from
his training duties did not materially his employment and therefore it does not constitute an
“adverse employment action.” However, I need not decide that issue as I have recommended
that this allegation be dismissed for other reasons.
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It is next alleged that in May the Respondent refused to rehire Garrett because of his
union activities and that on July 12 Padilla said that they didn’t rehire him because he was part
of the Union and that the Respondent would not allow employees to transfer from Los Angeles
to the facility because they were Union. Although I have previously discredited Proctor’s
testimony about the alleged statement by LaPlant, and find it generally unlikely and surprising
for a supervisor to make such a statement to an active union supporter, in this situation I credit
his testimony because it is supported by the testimony of Hernandez and Hardin, whom I found
to be credible while I did not find Padilla to be a credible witness because he appeared to be
evasive in his answers to questions from Counsel for the General Counsel and often claimed
that he could not remember subjects and conversations that he should have remembered. I
therefore find that Padilla did make this statement to Proctor, Hernandez and Hardin, and find
that it violates Section 8(a)(1) of the Act. J.L. Phillips Enterprises, 310 NLRB 11, 13 (1993);
Skyline Builders, Inc., 340 NLRB 109, 115 (2003).
It is further alleged that the failure to hire (or rehire) Garrett violates Section 8(a)(1)(3) of
the Act. Although I credited Proctor, Hernandez and Hardin that Padilla said that Garrett was
not hired because he was part of the Union, I do not believe the statement to be true. There are
a number of reasons for this finding. While I cannot explain why Padilla would make this
statement, the evidence so clearly establishes that Garrett was not rehired for nondiscriminatory
reasons, that I find Padilla’s statement was not true. First, I found Hoyt to be a credible and
believable witness and he testified that he never made that statement to Padilla. Further, the
other part of Padilla’s statement that they would not allow employees to transfer from Los
Angeles was not true as the uncontradicted testimony establishes that Morales transferred from
the Los Angeles facility to the Phoenix facility in 2014, and Valenzuela came to the facility in
2015, when they needed assistance. Other facts also convince me that Counsel for the General
Counsel has not sustained her initial burden under Wright Line. One is that Garrett’s union
activities were extremely limited: once a week he wore a union T-shirt and during startup
meetings he hollered “104.” Further, he was terminated for excessive absenteeism in January
and reapplied only 4 or 5 months later. Absent a pretextual reason for the refusal to rehire,
which I do not find here, it is not unreasonable for an employer to refuse to rehire an employee it
had discharged 4 or 5 months earlier. And finally, I found Gaston to be a totally credible witness
in describing her method of vetting the employment applications. She testified that when she
began her employment as HR coordinator, she was told that the Respondent does not rehire
anyone who had previously been terminated by the Respondent at the facility and to her
knowledge, no such applicant has been rehired, and that she made the decision to reject his
application without consulting with anybody about it: “If they had been termed for cause, I was
told that they are not rehirable so there was no sense in checking with anybody on that.”
Further, the exchange of emails with another facility on July 30, 2014, supports her testimony
that employees of the Respondent who had been terminated, are not eligible for rehire. I
therefore recommend that this allegation be dismissed. Aim Royal Insulation, Inc., 358 NLRB
787 (2012).
It is next alleged that the Respondent violated Section 8(a)(1)(4)(5) of the Act by
changing its practice of permitting union stewards to remain in, and be paid for, grievance
meetings that continue past their 5 o’clock start time. I found Graves to be a credible witness
whose testimony was supported by Proctor and documentary evidence. All parties agree that
the practice had been that union stewards who attended grievance meetings were permitted to
remain at the meetings that continued after 5 o’clock and that they would be paid for the time
that they remained at the meeting, beginning at 5 o’clock. Regardless of Hefley’s denials, the
evidence clearly establishes that in July and August the Respondent changed this longstanding
practice without prior negotiations with the Union. In emails to Graves he stated: “as the crew
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starts at 5pm” and “I will need the stewards to be at the shift start up meeting sharply at 5pm.”
In addition, I credit Graves’ testimony that in a telephone conversation, Hefley told him that the
stewards would no longer get paid for grievance meetings that went past 5 o’clock and told him
at the July 28 grievance meeting that the stewards at the meeting would have to be on the floor
at 5 o’clock, when their shift began. Further solidifying this finding is that it took Hefley 2 weeks
to respond to Graves’ July 30 letter requesting bargaining about this issue; if there really had
been no change, it is reasonable to assume that he would have replied immediately. I therefore
find that this change violates Section 8(a)(1)(5) of the Act. Dearborn Country Club, 298 NLRB
915 (1990); Pepsi America, Inc., 339 NLRB 986 (2003). As there is no evidence that it resulted
from unfair labor practice charges filed by the Union other than the fact that the initial unfair
labor practice charge was filed 11 days before the July 28 grievance meeting, I recommend that
the Section 8(a)(1)(4) allegation be dismissed.
The final allegation is that Tavenner’s statements to Peterson on October 5 violate
Section 8(a)(1) of the Act. It is, of course, a violation to threaten employees with discharge for
engaging in a strike, Baddour, Inc., 303 NLRB 275 (1991), but the testimony is so confused that
I cannot find such a threat in Peterson’s testimony. Tavenner said that if employees don’t come
to work, “people lose their jobs” and that he (Tavenner) could lose his job, but there was no
clear threat in his statement. I therefore recommend that this allegation be dismissed.
Conclusions of Law
1. Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent violated Section 8(a)(1) by threatening employees that they would
not be rehired and that employees would not be permitted to transfer from the Respondent’s
Los Angeles, California facility because of their union activities.
4. The Respondent violated Section 8(a)(1)(5) of the Act by changing its procedure of
permitting union stewards to remain at grievance meetings past their shift startup time, and to
be paid for that time, without prior negotiations with, or agreement of, the Union.
5. I recommend that the remaining allegations contained in the consolidated complaint
be dismissed.
The Remedy
Having found that Padilla’s threat that employees would not be rehired and that
employees could not transfer from the Los Angeles facility to the Phoenix facility violated
Section 8(a)(1) of the Act, and that the Respondent unilaterally changed its procedure of
permitting union stewards to remain in grievance meetings past their startup time, and to be
paid for that time, I recommend that the Respondent cease and desist from engaging in this
action and post a notice to this effect.
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Upon the foregoing findings of fact, conclusions of law, and on the entire record, I hereby
issue the following recommended5
ORDER
The Respondent, US Foods, Inc., its officers, agents, successors and assigns, shall
1. Cease and desist from
(a) Threatening employees that they will not be rehired, and that employees will not be
permitted to transfer to the facility because of their union or concerted activities.
(b) Changing any term and condition of employment of its unit employees without prior
bargaining with the Union.
(c) In any like or related manner interfere with, restrain or coerce its employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order notify the Union, in writing, that it
is an established term and condition of employment at the Phoenix facility for union stewards to
be allowed to remain at grievance meetings that go past their startup times, and to be paid for
that time, and that this procedure will not be changed without prior bargaining with the Union.
(b) Within 14 days after service by the Region, post at its facility in Phoenix, Arizona,
copies of the attached notice marked “Appendix.”6 Copies of the notice, on forms provided by
the Regional Director for Region 28, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
July 12, 2015.
(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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IT IS FURTHER ORDERED that the consolidated complaint is dismissed insofar as it alleges
violations of the Act not specifically found.

Dated, Washington, D.C. March 10, 2016
________________________
Joel P. Biblowitz
Administrative Law Judge

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Phoenix, AZ
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT threaten employees that they will not be hired or rehired or be permitted to transfer from our
Los Angeles, California facility to our Phoenix, Arizona facility because of their activities on behalf of
General Teamsters State of Arizona, Local Union No. 104, an affiliate of the International Brotherhood of
Teamsters (the Union) or any other labor organization.
WE WILL NOT change existing terms and conditions of employment without prior notice to, and bargaining
with, the Union. WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL notify the Union, in writing, that union stewards are permitted to remain at grievance meetings,
past their startup time, and to be paid for this time until the conclusion of the meetings.
US Foods, Inc.
(Employer)
Dated_____________ By____________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
2600 North Central Avenue, Suite 1800
Phoenix, Arizona 85004-3099
Hours: 8:15 a.m. to 4:45 p.m.
602-640-2160.
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Phoenix, AZ
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/28–CA–156203 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL.
ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY
BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 602-640-2146.