Shamrock Foods Company

National Labor Relations Board - Board Decisions

Jan 7, 2020

369 N.L.R.B. 5 (N.L.R.B. 2020)

369 NLRB No. 5
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Shamrock Foods Company and Bakery, Confection-
ery, Tobacco Workers’ and Grain Millers Inter-
national Union, Local Union No. 232, AFL–CIO–
CLC. Cases 28–CA–177035, 28–CA–178621, 28–
CA–181714, and 28–CA–182541
January 7, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On April 25, 2017, Administrative Law Judge Eleanor
Laws issued the attached decision. The Respondent and
the General Counsel each filed exceptions, a supporting
brief, an answering brief,1 and a reply brief. The Charging
Party filed cross-exceptions and a supporting brief, and
the Respondent filed an answering brief.

1 The Charging Party joined the General Counsel’s answering brief.
2 We adopt the judge’s findings, for the reasons she explained, that
the Respondent violated Sec. 8(a)(3) and (1) of the National Labor Rela-
tions Act by ending its practice of allowing employee D’Juan Williams
to leave work early on certain days. Relatedly, we affirm the judge’s
finding that the Respondent violated Sec. 8(a)(1) when Dayshift Man-
ager Armando Gutierrez told Williams on August 14, 2016, that Wil-
liams could no longer leave early “because of the [union] flyers” he had
distributed. Having found that statement unlawful, we find it unneces-
sary to pass on Gutierrez’s similar statement to Williams on August 17,
as finding that additional violation would not affect the remedy. Also
with respect to Williams, we deny the General Counsel’s exception con-
tending that Heather Vines-Bright, the Respondent’s Human Resources
Manager in Arizona, violated Sec. 8(a)(1) by telling Williams that the
denial of permission for him to continue leaving early on some days
“may have something to do with” the “labor issues that have been going
on at the warehouse and stuff,” as the complaint did not allege this state-
ment to be unlawful.
We also adopt the judge’s finding that the Respondent violated Sec.
8(a)(1) when Operations Manager Tim O’Meara told employee Mike
Meraz, during the Union’s organizing campaign, that the Respondent
could not look into changing its policy of retaining Meraz’ discipline for
a safety violation on his employee record for 2 years “because [e]very
policy, every pay plan that is in the warehouse is frozen. . . . [b]ecause
of the current situation we’re in,” and “if we weren’t in our current situ-
ation, yeah, I think in years past we’ve had policy committees that have
. . . looked at policies and changed them.” The Respondent asserts, and
the General Counsel does not dispute, that at the time of Meraz’ disci-
pline, a change to the safety policy was not expected, nor had the Re-
spondent used committees to change policies pursuant to any fixed pat-
tern or practice. Where, as here, an employer has provided certain ben-
efits in an “indefinite manner,” the Board permits employers to “tell their
employees that those benefits . . . will be deferred during the pendency
of organizational efforts where they make clear that the purpose in doing
so is to avoid the appearance of interference.” Village Thrift Store, 272
NLRB 572, 572–573 (1983). We find that O’Meara’s comments to Me-
raz did not meet this standard because, as the judge found, they “im-
plie[d] that if there were not union activity, the Respondent would be
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,2 and conclusions except as
explained below and to adopt the recommended Order as
modified below.3
Under the circumstances of this case, we agree with the
judge’s conclusion that the Respondent did not violate
Section 8(a)(3) and (1) by proffering and entering into a
settlement agreement with discriminatee Tom Wallace by
which Wallace waived his right to remedial reinstatement
in exchange for a cash payment. We disagree with the
judge, however, that the Respondent was shown to have
promulgated and maintained an unlawful rule in violation
of Section 8(a)(1) when Supervisor Jake Myers told em-
ployee D’Juan Williams he could not carry a cell phone
on the warehouse floor.
I.
A.
The Respondent unlawfully discharged Wallace on
April 6, 2015, during an active campaign by the Union to
open to making improvements to its disciplinary policy.” Cf. Ace Heat-
ing and Air Conditioning Co., 364 NLRB No. 22, slip op. at 4–5 (2016)
(finding employer adequately expressed that its “purpose in keeping
wages unchanged was to avoid the appearance of attempting to interfere
with [an] ongoing election proceeding” where the employer explained
that until election-related matters “were resolved, wages would remain
unchanged because otherwise it might look like . . . bribery”).
Further, we agree with the judge, for the reasons she stated, that the
Respondent violated Sec. 8(a)(1) when it held a December 2015 holiday
banquet for its employees that included more elaborate prizes and en-
hanced paid time as coercive benefits.
The Respondent and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Although we have not adopted all the violations found by the judge,
we agree for the reasons she stated that the remedial notice, in addition
to being posted, should be read aloud to the unit employees in order to
dissipate as much as possible the lingering effects of the serious unfair
labor practices the Respondent has been found to have committed in this
and other recent cases. Shamrock Foods Co., 366 NLRB No. 117 (2018)
(“Shamrock I”), enfd. 779 Fed.Appx. 752 (D.C. Cir. 2019); Shamrock
Foods Co., 366 NLRB No. 107 (2018), enfd. 779 Fed.Appx. 752 (D.C.
Cir. 2019). We also agree that the Respondent’s CEO, Kent McClelland,
should at a minimum be present on that occasion in view of his involve-
ment in those violations. We will therefore require that the notice either
be read to employees by McClelland or (at the Respondent’s option) by
an agent of the Board with McClelland present. See, e.g., Ingredion, Inc.
d/b/a Penford Products Co., 366 NLRB No. 74, slip op. at 1 fn. 2 (2018),
enfd. 930 F.3d 509 (D.C. Cir. 2019); Domsey Trading Corp., 310 NLRB
777, 779–780 (1993), enfd. 16 F.3d 517 (2d Cir. 1994).
We shall further modify the order in accordance with this decision, as
set forth below, and we shall substitute the attached notice for that set
out in the judge’s decision.
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
organize the Respondent’s food distribution warehouse in
Phoenix, Arizona.4 Wallace actively supported the Un-
ion’s campaign after his discharge. In November and De-
cember 2015, along with other union supporters, he pick-
eted with union signs (including “Workers United to Bring
Tom Wallace Back”) and helped to distribute union flyers
at the warehouse.
On February 1, 2016, a U.S. district court issued an or-
der under Section 10(j) of the Act reinstating Wallace
pending the outcome of the Board’s adjudication of his
discharge.5 Prounion employees then distributed a flyer
informing the warehouse of the court’s order, and the
judge implicitly credited testimony that many of Wal-
lace’s coworkers were excited about the prospect of his
returning to work.
At first, the Respondent offered Wallace reinstatement
in compliance with the court’s order. Then, on February
9, it offered him a settlement of $178,000 in exchange for
the waiver of his right to reinstatement. Wallace rejected
this offer and asked for a payment of $350,000--to include
the settlement of a disability charge he had filed with the
Equal Employment Opportunity Commission over his dis-
charge--plus 3 years of medical coverage. On February
11, the administrative law judge’s decision issued in
Shamrock I, in which Wallace’s discharge was found un-
lawful. Shamrock I, 366 NLRB No. 117. On the same
day, the Respondent increased its offer to Wallace to
$214,270.30--an amount more than four times the amount
of remedial back pay he had accrued. The personnel offi-
cial who conveyed this offer to Wallace was told by upper
management that the Respondent “did not want Wallace
to return to work.” On February 12, Wallace accepted the
Respondent’s offer.6 He received the agreed payment
shortly afterward.
The complaint in this case alleges that the settlement
agreement constituted an unlawful bribe to prevent Wal-
lace from engaging in future union organizing activity in-
side the Respondent’s facility. The judge rejected that al-
legation, relying in part on Federal Rule of Evidence 408
(“Compromise Offers and Negotiations”). The judge also

4 Shamrock I, 366 NLRB No. 117.
5 All further dates are in 2016 unless otherwise indicated.
6 The settlement agreement did not require Wallace to seek dismissal
of the complaint allegation challenging his discharge in Shamrock I or
prospectively waive any Sec. 7 rights.
7 Because the complaint alleges that the settlement agreement in this
case violated Sec. 8(a)(3), the judge was correct that Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982), rather than Independent Stave Co., 287 NLRB 740
(1987), would normally provide the applicable analysis. Under Wright
Line, when an employer action is alleged to be unlawfully discriminatory
under Sec. 8(a)(3), the General Counsel bears the initial burden of show-
ing that protected activity was a motivating factor for the action. If this
showing is made, the burden shifts to the respondent to show that it
opined that passing on the allegation would require her to
analyze the validity of the claim underlying the settle-
ment--i.e., Wallace’s discharge.
B.
Although we agree with the judge’s ultimate conclusion
that the settlement is lawful, we observe that this is an un-
usual case warranting careful scrutiny of the Respondent’s
actions. As found by the judge, the record indicates that
the Respondent was committed to preventing Wallace
from returning to work, even temporarily per the district
court’s 10(j) order.7 As noted above, the Respondent had
already unlawfully discharged Wallace, and Wallace was
an active and well-known union supporter after his termi-
nation. The Respondent, moreover, has never contended
that Wallace’s work performance was deficient or that his
reinstatement would cause friction with other employees
or with management, which are the typical employer de-
fenses against remedial reinstatement. Yet, the Respond-
ent’s management told its personnel official categorically
that the Respondent “did not want Wallace to return to
work.”
Further, as described, the Respondent knew that Wal-
lace’s reinstatement had become an issue of importance to
many other warehouse employees. The Respondent rea-
sonably would have viewed Wallace as a leader of the un-
ion campaign by the time the 10(j) order for his reinstate-
ment issued in February 2016 and would have recognized
that Wallace’s return to work--or its prevention--would
have a dramatic impact on the campaign, as the settlement
agreement ultimately did have.8
The Respondent’s generous settlement offer to Wallace
also raises concern. At the time of the offer, the Respond-
ent knew that its potential financial liability to Wallace
would be limited essentially to his lost (and unmitigated)
pay plus his other related losses.9 Yet, to avoid reinstating
Wallace, the Respondent was willing to pay him more
than four times the amount of backpay he would have re-
ceived at that time under a Board order. That fact, along
with the totality of the other evidence, at least suggests that
would have taken the same action even in the absence of the employee’s
protected activity. Independent Stave establishes the relevant factors for
determining whether a settlement agreement should be enforced over a
party’s objection, and whether the Board should adjudicate the underly-
ing charge.
8 The judge found from the credited testimony, in fact, that Wallace’s
failure to return to work “impacted negatively on the Union’s organizing
efforts,” noting that in June 2016 only about 25 percent of the employees
who had initially signed cards for the Union re-signed them.
9 At the time of settlement, the Respondent had already litigated the
discharge allegation at the hearing in Shamrock I and briefed the issue to
the judge in that case; accordingly, the Respondent was not attempting
to avoid those legal costs.
SHAMROCK FOODS CO. 3
the Respondent’s motive was to prevent Wallace from en-
gaging in further union activity in the Respondent’s work-
place rather than to ensure cost savings or employee
productivity.10
Finally, the Respondent made essentially no effort to
demonstrate that it would have offered Wallace such a
generous settlement agreement absent his union activity.
As the General Counsel points out, at the hearing the Re-
spondent did not question any management witness as to
its reason(s) for offering and paying Wallace the amount
it did. Because those reasons were directly at issue, that
failure certainly raises the specter that the actual reason
was to prevent Wallace from continuing his union activity
in the Respondent’s workplace.11
C.
In all the circumstances, then, there appears to be at
least a colorable basis for finding that the Respondent’s
settlement offer to Wallace was unlawful. The evidence
supporting the Respondent’s unlawful motive in offering
the settlement to Wallace, however, must be considered
against the Board’s longstanding policy, established in In-
dependent Stave and its progeny, to encourage the com-
promise and settlement of unfair labor practice charges.12
And there is nothing inherently unlawful about settlement
in which an employee waives reinstatement in exchange
for an enhanced remedial payment from the employer; in-
deed, the Board has approved many such settlements.
The Board has declined to give effect to settlement
agreements that contain a prospective waiver of Section 7
rights.13 Such cases are not implicated here. The issue
here is not whether to give effect to a settlement agree-
ment. It is whether to find that the offer of settlement vi-
olated the Act. Moreover, the Respondent’s offer to Wal-
lace was not conditioned on a prospective waiver of Sec-
tion 7 rights; the settlement agreement required him only

10 The inference of unlawful animus would be further supported by
the other violations the Board found in Shamrock I (including Wallace’s
unlawful discharge) and in this case.
11 See, e.g., Asarco Inc., 316 NLRB 636, 640 fn. 15 (1995), enf. de-
nied on other grounds 86 F.3d 1401, 1412 (5th Cir. 1996); Colorflo Dec-
orator Products, 228 NLRB 408, 410 (1977), enfd. mem. 583 F.2d 1289
(9th Cir. 1978).
12 “[T]he Board has from the very beginning encouraged compro-
mises and settlements.” Wallace Corp. v. NLRB, 323 U.S. 248, 254–
255 (1944). “The Board has long had a policy of encouraging the peace-
ful, nonlitigious resolution of disputes. ‘The purpose of such attempted
settlements has been to end labor disputes, and so far as possible to ex-
tinguish all the elements giving rise to them.’” Independent Stave, 287
NLRB at 741 (quoting Wallace, 323 U.S. at 254).
13 See Clark Distribution Systems, 336 NLRB 747, 751 (2001) (de-
clining to give effect to a settlement agreement containing a waiver of
employee’s right to participate as a witness in a Board case); see also
Webel Feed Mills & Pike Transit Co., 229 NLRB 178, 179–180 (1977)
(declining to enforce settlement agreement where, among other reasons,
to agree not to resume employment.14 It is also clear from
the record that Wallace independently negotiated with the
Respondent, was not coerced into entering into this agree-
ment, and had the option of refusing any settlement offer,
thus requiring the Respondent to reinstate him immedi-
ately or be found in contempt of the outstanding 10(j) de-
cree. Moreover, although the Respondent’s payment sig-
nificantly exceeded the amount of remedial backpay Wal-
lace had accrued, the settlement also resolved an entirely
separate claim he had filed with the EEOC, and part of the
payment he received represented the value of that claim.
In short, there appears to be an equally colorable argument
that the settlement was a bona fide resolution of the mul-
tiple claims Wallace had asserted against the Respondent.
D.
Taking all of those circumstances into consideration, we
are not persuaded by the General Counsel’s contention
that the settlement agreement in this case should be found
unlawful. In the absence of a more compelling basis for
concluding that the settlement interferes with the Board’s
interest in protecting Section 7 rights or Wallace’s exer-
cise of those rights, we find that the public policy favoring
settlements warrants letting the settlement stand.15 Ac-
cordingly, under the particular circumstances of this case,
we adopt the judge’s finding that this complaint allegation
should be dismissed.
II.
On August 16, Supervisor Myers noticed a cell phone
in D’Juan Williams’ pocket and told him that he could not
have his cell phone on the warehouse floor. Williams said
he used his phone as a recorder, not as a cell phone, but
Myers responded that it was “still a cell phone.”
The judge found that Myers unlawfully extended a writ-
ten safety rule the Respondent had previously issued
settlement payment was found to constitute a bribe for the purpose of
removing a union leader).
14 We emphasize that the issue presented here concerns whether an
offer to settle an unfair labor practice allegation violated the Act, not
whether a severance offer extended in the absence of any such allegation
does so.
15 We do not agree with the judge’s implication that Federal Rule of
Evidence 408, by its terms, would preclude our finding the settlement
agreement unlawful. As the subject of the complaint allegation, the
agreement is not merely evidence; it is the material basis of the case and
is therefore, by definition, admissible. Moreover, the rule bars only evi-
dence pertaining to the merits of “the claim”—i.e., the underlying claim
which is the subject of settlement. In the present case, the merits of the
underlying claim—Wallace’s discharge—are not at issue. The courts
and the Board have also found that Rule 408 does not bar evidence of an
unfair labor practice independently committed in the course of settlement
negotiations. See Church Square Supermarket, 356 NLRB 1357, 1369
fn. 40 (2011); Miami Systems Corp., 320 NLRB 71 (1995), affd. in rele-
vant part 111 F.3d 1284 (6th Cir. 1997); Cirker’s Moving Co., 313 NLRB
1318, 1326 (1994).
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prohibiting the use of “musical devices,” including cell
phones, to listen to music while working due to the risk
they created of distraction resulting in accidents.16 She
reasoned that Myers’ statements to Williams constituted
the promulgation of a broader, unlawful rule altogether
prohibiting the use of cell phones on the warehouse floor.
We do not agree that Myers promulgated an unlawful
rule. His statements were made only to Williams and
“could not reasonably be interpreted as establishing that
[the Respondent] intended to implement a new, more re-
strictive” rule for other employees.17 Indeed, the Board
has repeatedly held that a statement made to a single em-
ployee is not the promulgation of a rule for the entire work
force.18 We therefore dismiss this allegation.19
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge as modi-
fied below and orders that the Respondent, Shamrock
Foods Company, Phoenix, Arizona, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order as modified.
1. Delete paragraphs 1(e) and 2(a), and reletter subse-
quent paragraphs accordingly.
2. Substitute the following for paragraph 2(e):
“(e) Within 14 days after service by the Region, hold a
meeting or meetings during working hours, scheduled to
ensure the widest possible attendance, at which the at-
tached notice marked “Appendix” is to be read to the
warehouse employees at its Phoenix, Arizona facility by
President/CEO Kent McClelland in the presence of a
Board agent or, at the Respondent’s option, by a Board
agent in the presence of McClelland, with translation
available for Spanish-speaking employees.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
Dated, Washington, D.C. January 7, 2020

16 In Shamrock I, the Board severed and retained for further consid-
eration the allegation that this previously issued rule, “Head/Ear & Cell
Phone Use,” was unlawful. 366 NLRB No. 117, slip op. at 3. Ultimately,
the Board remanded the allegation to the administrative law judge. On
July 8, 2019, the judge granted the General Counsel’s motion to with-
draw this complaint allegation.
17 St. Mary’s Hospital of Blue Springs, 346 NLRB 776, 777 (2006).
18 See Flamingo Las Vegas Operating Co., LLC, 361 NLRB 1047
(2014), affirming and incorporating by reference 359 NLRB 873 (2013),
rev. granted in part on other grounds mem. 2016 WL 3887170 (D.C. Cir.
June 10, 2016) (per curiam); St. Rose Dominican Hospitals, 360 NLRB
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT grant you benefits, such as more elaborate
prizes and enhanced paid time at our annual holiday ban-
quet, in an effort to discourage you from supporting a un-
ion.
WE WILL NOT blame your union activity for preventing
us from making improvements to your pay plans or work
policies.
WE WILL NOT blame the Union or your union activity
for our stricter enforcement of work rules or threaten you
1130, 1131 (2014); Teachers AFT New Mexico, 360 NLRB 438, 438 fn.
3 (2014); Flamingo Las Vegas Operating Co., 360 NLRB 243, 243 & fn.
5 (2014); St. Mary’s Hospital of Blue Springs, supra.
19 We note that the General Counsel did not allege that Myers’ state-
ments were unlawfully coercive as applied to Williams alone. The com-
plaint alleges only that Myers “promulgated and since then maintained
an overly-broad and discriminatory rule or directive prohibiting its em-
ployees” from carrying cell phones. Nor did the General Counsel present
any evidence that Myers “since then maintained” a rule based on his
statements.
SHAMROCK FOODS CO. 5
with stricter enforcement of work rules to discourage your
union support.
WE WILL NOT promise you benefits or improved work-
ing conditions based on whether you stop engaging in un-
ion activity or stop supporting the Union.
WE WILL NOT rescind our policy of allowing flexibility
in your work schedules, such as leaving early on certain
days, because you or others engage in union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from our files all references to the
stricter schedule enforcement of D’Juan Williams, and WE
WILL notify him in writing that this has been done, or if
there is no reference in his file, WE WILL notify him in writ-
ing that the flexibility he was previously granted in his
schedule has been restored and the schedule change will
not be used against him in any way.
SHAMROCK FOODS COMPANY
The Board’s decision can be found at
www.nlrb.gov/case/28-CA-177035 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Sara Demirok, Esq., for the General Counsel.
Todd A. Dawson, Esq., Nancy Inesta, Esq. (Baker & Hostetler,
LLP), for the Respondent.
David Rosenfeld, Esq., Weinberg (Roger & Rosenfeld), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR LAWS, Administrative Law Judge. This case was
tried in Phoenix, Arizona, on February 7–9, 2017. The Bakery,
Confectionery, Tobacco Workers’ and Grain Millers Interna-
tional Union (Charging Party or Union) filed charges and
amended charges on May 26, June 17, September 30, August 8,
August 22, and October 27, 2016.1 The General Counsel issued
the consolidated complaint on October 28. Shamrock Foods

1 All dates are in 2016 unless otherwise indicated.
Company (the Respondent or Shamrock) filed a timely answer
denying all material allegations.
The complaint alleges the Respondent violated Section 8(a)(1)
of the National Labor Relations Act (the Act) by: granting em-
ployees benefits; blaming the Union for preventing changes to
wages, benefits, and other working conditions; promising im-
provements in its disciplinary policy if its employees refrained
from continued organizational efforts; blaming the Union and
employees’ union activities for stricter enforcement of rules and
withdrawal of benefits; threatening employees with stricter en-
forcement of rules and withdrawal of benefits; and promulgating
and maintaining an overly-broad rule prohibiting cell phones on
the warehouse floor. The complaint further alleges the Respond-
ent violated Section 8(a)(3) and (1) of the Act by: soliciting em-
ployee Thomas Wallace (Wallace) to sign an agreement not to
return to work in exchange for $214,270.30; and ceasing its prac-
tice of permitting employee D’Juan Williams (Williams) to leave
work early on certain days.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed by
the General Counsel, the Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, an Arizona corporation with an office and
place of business in Phoenix, Arizona, is engaged in the whole-
sale distribution of food products. The Respondent admits, and I
find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that the Un-
ion is a labor organization within the meaning of Section 2(5) of
the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. CEO’s Failure to Appear to Testify
Before turning to the substance of the complaint, I will address
the refusal of President/CEO Kent McClelland to testify at the
hearing, despite being served with a valid subpoena. The Re-
spondent’s petition to revoke this subpoena was denied on Janu-
ary 17, 2017. The General Counsel argues that adverse infer-
ences are warranted. I agree. See Rogan Bros. Sanitation, Inc.,
362 NLRB 547, 549 fn. 9 (2015); Carpenters Local 405, 328
NLRB 788 fn. 2 (1999).
The Respondent argues an adverse inference would be im-
proper “in light of General Counsel’s failure to demonstrate that
McClelland possessed relevant knowledge or that his absence
prevented General Counsel from eliciting evidence regarding a
material matter.” The Respondent first points to Corliss Re-
sources, 362 NLRB 195 at fn. 56 (2015), where the administra-
tive law judge, noting that the General Counsel did not contend
an adverse inference should be drawn, declined to do so sua
sponte. The General Counsel did not file exceptions in Corliss
Resources, and the Board (to no surprise) did not pass on the
matter. Reliance on this case is therefore misplaced.
Next, the Respondent cites to Riverdale Nursing Home, 317
NLRB 881, 882 (1995), for the premise that it is improper for a
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
judge to rely on adverse inference to fill an evidentiary gap in
General Counsel’s case. I do not read the case to stand for such
a broad proposition. The Board in Riverdale pointed out that the
“adverse inference drawn by the judge constitutes virtually the
General Counsel’s entire case regarding the Respondents’ joint
employer status.” In the instant case, an adverse inference will
not comprise the General Counsel’s case almost entirely. It is
also worth pointing out that the adverse inference in Riverdale
involved a subpoena duces tecum that the General Counsel did
not seek to enforce, and the Respondent’s failure to call one of
its own witnesses to rebut what little testimony the General
Counsel adduced in its case in chief. It did not, as here, involve
a witness’s decision to flout a subpoena and refuse to testify.
The Respondent further cites to Denny’s Transmission Ser-
vice, 363 NLRB No. 190 (2016), where the administrative law
judge declined to draw adverse inferences based on the com-
pany’s failure to call a witness who was no longer in its employ.
The General Counsel did not file exceptions in Denny’s, so, as
in Corliss Resources, the Board did not pass on the matter. In
any event, a respondent’s decision not to call a witness in support
of its own defense is a far cry from a witness refusing to comply
with a subpoena. This is particularly true where, as the judge in
Denny’s noted, the evidence showed the witness would not nec-
essarily be inclined to testify in the company’s favor.
Finally, the Respondent cites to M-B Co., Inc., 290 NLRB 68,
68 fn. 2 (1988), where the Board agreed with the judge that the
company’s decision not to call certain non-supervisory individ-
uals to testify in aid of its defense did not give rise to an adverse
inference. I will not belabor contrasting the scenario in M-B Co.
with the situation present here, i.e., the CEO refusing to appear
pursuant to the General Counsel’s subpoena following the Re-
spondent’s failed attempt revoke it.
Simply put, Kent McClelland chose to disregard his obligation
to testify pursuant to the subpoena issued to him at his own peril.
To permit the Respondent to escape the consequences of its high-
est level official flouting a valid subpoena would severely under-
mine the Act and the Board processes derived from it. Accord-
ingly, I find sanctions are very clearly warranted. Specific ad-
verse inferences are detailed in context below.2

2 The Respondent did not rely on NLRB v. International Medication
Systems, 640 F.2d 1110, 1116 (9th Cir. 1981), cert. denied 455 U.S. 1017
(1982), as authority for the principle that I may make no adverse infer-
ence. Even if International Medication may be read to support the prop-
osition that adverse inferences may not be made when a witness refuses
to appear pursuant to a valid subpoena, it is contrary to Board law. See
cases cited above, as well as Lemay Caring Center, 280 NLRB 60 fn. 2
(1986); Today’s Man, 263 NLRB 332 (1982); and to at least three other
circuits. Hedison Mfg. Co., 643 F.2d 32, 34 (1st Cir. 1981); NLRB v. C.
H. Sprague & Son Co., 428 F.2d 938, 942 (1st Cir. 1970); NLRB v. Amer-
ican Arts Industries, 415 F.2d 1223, 1230 (5th Cir. 1969), cert. denied
397 U.S. 990 (1970); Auto Workers v. NLRB, 459 F.2d 1329 (D.C. Cir.
1972). In Atlantic Richfield Co. v. U.S. Dept. of Energy, 769 F.2d 771
(D.C. Cir. 1984), the D.C. Circuit squarely rebuked the Ninth Circuit’s
reasoning in International Medication Systems. It is clear administrative
law judges lack the authority to compel a witness’s appearance at an ad-
ministrative hearing. The upshot of a holding that witnesses may simply
refuse to testify and await subpoena enforcement in Federal court with
no interim consequences, however, would be to reward employer and
B. Background and the Respondent’s Operations
Shamrock Foods operates food distribution warehouses in
several states. The instant case concerns the warehouse in Phoe-
nix, Arizona. Approximately 280 employees work within the
Phoenix warehouse. Warehouse employees include receivers,
forklift operators, order selectors (sometimes referred to as
“pickers”), and loaders. The number of warehouse employees
from December 2010–December 2013 was as follows: 232 em-
ployees in 2010, 251 in 2011, 311 in 2012, 300 in 2013, 358 in
2014, and 360 in 2015. (R. Exh. 13.)3
About 250 drivers transport items to and from the warehouse.
The drivers are part of the Respondent’s transportation depart-
ment, which is separate from the warehouse.
During the relevant time period, Kent McClelland (McClel-
land) served as Shamrock’s president and chief executive officer
(CEO). Mark Engdahl (Engdahl), who reported directly to
McClelland, served as vice-president of operations for food ser-
vice, overseeing the warehouse and transportation employees at
the Phoenix warehouse. Tim O’Meara, the operations manager,
reported directly to Engdahl. Ivan Vaivao, the warehouse man-
ager, reported directly to O’Meara. Vaivao oversaw other man-
agers, who in turn oversaw supervisors in the warehouse.
Robert Beake (Beake) served as senior vice president human
resources (HR).4 Heather Vines-Bright (Vines-Bright), an HR
manager, reported to Beake.
C. Union Organizing Activity
Warehouse employees began organizing efforts with the Un-
ion in late 2014. Steven Phipps, who worked as a loader and
forklift driver for Shamrock for 19 years, was the main employee
organizer.5 (Tr. 416.) He first contacted the Union in November
2014. Phipps created flyers on the Union’s behalf, and distrib-
uted them at the warehouse with a group of 5–7 other employees
during October–December 2015. (GC Exh. 22; Tr. 417–419.)
By early 2015, Respondent was aware some of its employees
were in contact with the Union. Between January and May 2015,
Engdahl held meetings with employees to educate them about
unions. (Tr. 63–64.) By the end of February, the Union had col-
lected authorization cards from approximately 90 employees.
union respondents who encourage their witnesses to simply ignore sub-
poenas, resulting in delay of hearings and a flood of enforcement pro-
ceedings in the Federal courts. Such a construction of International
Medication would severely undermine the Act.
3 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “R. Exh.” for the Respondent’s exhibit; “GC Exh.” for the General
Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; and “R.
Br.” for the Respondent’s brief. Although I have included several cita-
tions to the record to highlight particular testimony or exhibits, I empha-
size that my findings and conclusions are based not solely on the evi-
dence specifically cited but rather are based my review and consideration
of the entire record.
4 At the time of the hearing, Beake had retired from the senior vice
president human resources position and transferred his responsibilities to
Vince Daniels. He still worked for Shamrock on special projects and in
an advisory role for McClelland and his father, Board Chairman Norm
McClelland. (Tr. 83.)
5 Phipps was discharged in June 2016 for safety violations. (Tr. 435.)
SHAMROCK FOODS CO. 7
By the end August 2015, the Union had collected authorization
cards from a total 107 employees. (Tr. 447–449.)
D. The Holiday Banquet
Complaint paragraphs 5(a) and 7 allege the Respondent vio-
lated Section 8(a)(1) of the Act when it granted its employees
benefits by raffling off and presenting prizes to them at a holiday
banquet on December 19, 2015. At the hearing, I granted the
General Counsel’s motion to amend the complaint to include a
related allegation that the Respondent paid for employees’ time
to attend the holiday banquet. (Tr. 198.)
1. Facts
Shamrock hosts various events for employees, including an
annual holiday banquet.6 Prior to 2015, the holiday banquet for
the warehouse workers typically was held at the warehouse au-
ditorium during the employees’ lunch break.7 For at least the
past couple of years it consisted of a meal, speeches, awards for
perfect safety and attendance (PSA awards), and a raffle.8 (R.
Exhs. 4–7.) The holiday banquet was held offsite at a resort hotel
in 2007 and 2008 but did not include a raffle. (Tr. 278.) In recent
years, the warehouse banquets have lasted about an hour, and
employees have been paid for any time exceeding their 30-mi-
nute lunch break. (Tr. 271, 278.) The shift is extended in pro-
portion time spent at the banquet beyond the employees’ lunch
break. (Tr. 54.) The transportation employees historically at-
tended a separate holiday banquet, usually held offsite.
On December 19, 2015, Shamrock held its annual holiday
banquet at the Talking Stick Resort and Casino. All food opera-
tions employees, including warehouse, transportation, and other
departments, were invited to attend and were permitted to bring
a guest. (GC Exh. 17.) Attendees were provided with drink tick-
ets. (Tr. 38, 263.) McClelland, O’Mara, and Vaivao all attended.
Registration and check-in began at 4:30 p.m., followed by a re-
ception, remarks from Board Chairman Norman McClelland,
dinner, dancing, awards, and raffle prizes. The banquet ended at
9 p.m. (GC Exh. 2.) Employees were paid for four hours of their
time to attend the banquet. (Tr. 262, 553.)
Raffle items at the 2015 holiday banquet ranged in value from
$45 gift cards at the lowest end to a $5,000 travel certificate at
the highest. The other raffle prizes were: two laptop computers
valued at $499.99 each; four iPad Air tablets valued at $499
each; an Xbox valued at $499.99; two PlayStations valued at
$429.99 and $399.99; two 55-inch flat screen TVs valued at
$479.99 each; a 60-inch flat-screen TV valued at $699.99, and
another donated 60-inch TV; two drones valued at $199.99 each;
ten $100 gift cards; four Bose speakers valued at $119 each; two
Insignia Soundbar speakers valued at $99.99 each; four Beats

6 Testimony about various events was elicited but is not material, as
this decision focuses on the annual holiday banquet.
7 There was generally one banquet for the day shift and another for
the night shift. (Tr. 549.)
8 The raffle in 2012 was among employees who had perfect safety
and attendance. (R. Exh. 4.) In 2013 and 2014, the employee awards
and the raffle were separate, though both include prizes. (R. Exhs. 5–6.)
There is no allegation involving the employee awards.
9 Richardson’s recollection, at Tr. 268, is consistent with the receipt
showing the highest priced item in 2014 was an iPad Air. (R. Exh. 11d.)
I found Richardson to be a credible witness based on his open and
speakers valued at $112.49 each; and three GoPro cameras val-
ued at $299.99 each. The prizes, along with the winning raffle
ticket numbers, were displayed as part of a PowerPoint presen-
tation. (GC Exh. 4.) The total cost for the raffle prizes was
$14,848.72. (GC Exhs. 3–5.) The cost of the banquet, not in-
cluding the prizes, was $144,511.90. (Tr. 57; GC Exh. 6.)
Thomas Richardson has worked in the warehouse at Sham-
rock since 2007. He attended the holiday banquet in 2014 in the
warehouse auditorium. A raffle was held following awards for
perfect safety and attendance (PSA) other employee achieve-
ment awards. (R. Exh. 6.) Prizes for the raffle included smaller
ticket items such as basketballs, footballs, volleyballs, tool sets,
chairs, griddles, and other small kitchen appliances. The larger
ticket items consisted of: four laptops, with two valued at
$279.99 each and two valued at $249 each; four Kindle Fires
valued at $99.99 each; and four Galaxy tablets valued at $139.99
each. The grand prize was an iPad Air, valued at $319.99. Two
of these were awarded—one for the day shift and one for the
night shift.9 The cost for the prizes was $4,704.03.10 (Tr. 268;
R. Exh. 11.)
Vaivao recalled the raffle prizes in years prior to 2015 in-
cluded big ticket items like big screen televisions, laptops, iPads,
and Kindles, as well as small items such as footballs, basketballs,
and tool kits. (Tr. 561, 564–566; R. Exh. 5.) Engdahl authorized
expenses for the events at all of Shamrock’s branches. He re-
called Shamrock has given out different items, such as trips, ca-
noes, boats, and quads, but was not certain if these prizes were
for warehouse employees. (Tr. 53–54.) Warehouse employees
D’Juan Williams. Michael Meraz, Steven Phipps, as well as
Richardson, remembered items such as footballs, basketballs,
tickets to a sporting event, and a television. No employee re-
called seeing a boat or a $5,000 gift certificate as a raffle item.
(Tr. 269–270, 336–337, 402–403, 430–431.)
Vaivao was among the individuals who decided the location
of the 2015 holiday banquet. One of the reasons he gave for the
decision to hold it offsite was the auditorium, which holds about
180 people, was becoming too small to accommodate the ware-
house employees. Shamrock also wanted to combine day and
night shifts and have one party for all of operations, including
transportation. (Tr. 548, 550–552.)
Shamrock accrues money in an employee appreciation ac-
count to budget for events, including the holiday banquet. Em-
ployee appreciation events are included in one general ledger ex-
pense line. (Tr. 620.) Budgeting is calculated using the fiscal
year, starting October 1 and ending September 30 annually.
straightforward demeanor while testifying. As a current employee testi-
fying against his own pecuniary interest, his testimony, along with the
testimony of other current employee witnesses, is particularly reliable.
Gold Standard Enterprises, 234 NLRB 618, 619 (1978); Georgia Rug
Mill, 131 NLRB 1304, 1304 fn. 2 (1961); Gateway Transportation Co.,
193 NLRB 47, 48 (1971); Federal Stainless Sink Div. of Unarco Indus-
tries, 197 NLRB 489, 491 (1972).
10 The total cost does not differentiate between award prizes and raffle
prizes, except for the $25 gift cards awarded to the 58 employees who
received PSA awards. (R. Exh. 11a.)
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Departments are identified by number, with 701–703 represent-
ing the warehouse.11 (Tr. 624.)
Budgeting for the 2013 year-end event is reflected in the pre-
vious fiscal year, beginning October 1, 2012, and ending Sep-
tember 30, 2013.12 On October 31, 2012, Shamrock accrued
$10,000 for the warehouse department for the employee recog-
nition event. Shamrock accrued an additional $2,500 each of the
months from March–July 2013. There are no records reflecting
what, if anything was accrued in November–December 2012,
January–February 2013, or August–September 2013.
For the 2014 year-end event, Shamrock accrued $10,000 in
October 2013 for the warehouse department. It accrued an addi-
tional $3,000 in each of the months from November 2013–Feb-
ruary 2014, as well as $7,000 in each of the months from April–
June 2014. Shamrock accrued $5,362 in July 2014, and $22,500
in September 2014. (R. Exh. 12.)
Turning to the 2015 year-end event, for the warehouse depart-
ment, Shamrock accrued $7,000 in each of the months from Oc-
tober–December 2014, and January 2015. On February 23,
2015, $7,000 was accrued but that same amount was credited
back on February 28.13 On March 24, 2015, $7,000 was accrued
but that same amount was credited back on March 31. On April
30, 2015, $7,000 was accrued and refunded the same day. Sham-
rock accrued $4,500 in July 2015, and $10,000 in August 2015,
broken down into two separate entries of $4,500 and $5,500 re-
spectively. It accrued an additional $17,155 in September 2015,
broken down into three separate entries. (R. Exh. 12.)
2. Analysis
Under Section 8(a)(1) of the Act, it is an unfair labor practice
for an employer to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in Section 7 of the Act.
The rights guaranteed in Section 7 include the right “to form, join
or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection . . .”
The basic test for a violation of Section 8(a)(1) is whether un-
der all the circumstances the employer’s conduct would reason-
ably tend to restrain, coerce, or interfere with employees’ rights
guaranteed by the Section 7 of the Act. Mediplex of Danbury,
314 NLRB 470, 472, (1994); Sunnyside Home Care Project, 308
NLRB 346 fn. 1 (1992), citing American Freightways Co., 124
NLRB 146, 147(1959). Further, “It is well settled that the test
of interference, restraint, and coercion under Section 8(a)(1) of
the Act does not turn on the employer’s motive or on whether
the coercion succeeded or failed.” American. Tissue Corp., 336
NLRB 435, 441 (2001) (citing NLRB v. Illinois Tool Works, 153
F.2d 811, 814 (7th Cir. 1946)).
The Supreme Court, in Medo Photo Supply Corp. v. NLRB,
321 U.S. 678, 686 (1944), stated that the “action of employees
with respect to the choice of their bargaining agents may be

11 The text of Respondent’s Exhibit 12 is very difficult to read. It is
clear that many of the “0” entries erroneously appear to be “8” on the
copy in the record. This is most apparent from the entries depicting year
where, for example, the entry on the third line down for October 31,
2013, reads “10/31/2813”.
induced by favors bestowed by the employer as well as by his
threats or domination.” As the Court explained in NLRB v. Ex-
change Parts Co., 375 U.S. 405, 409 (1964):
The danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees are not
likely to miss the inference that the source of benefits now con-
ferred is also the source from which future benefits must flow
and which may dry up if it is not obliged.
(fn. omitted.) The Court further stated that “the conferral of em-
ployee benefits while a representation election is pending, for the
purpose of inducing employees to vote against the union,” inter-
feres with the employees’ protected right to organize. It is well-
settled that the Exchange Parts principles apply to promises
and/or granting of wage increases or other benefits if they are
made in response to union organizational activity, regardless of
whether a representation petition has been filed. Network Dy-
namics, 351 NLRB 1423, 1424 (2007); Hampton Inn NY-JFK
Airport, 348 NLRB 16, 17 (2006).
Unlike most 8(a)(1) allegations, analysis of a claim that bene-
fits were promised, announced, or granted to coerce employees
in their choice of bargaining representative is motive-based.
Network Dynamics Cabling, Inc., 351 NLRB 1423, 1424 (2007).
The granting of benefits to employees during union organiza-
tional activity “is not per se unlawful” where the employer can
show that its actions were governed by other factors. American
Sunroof Corp., 248 NLRB 748, 748 (1980), modified on other
grounds 667 F.2d 20 (6th Cir. 1981).
To establish such a claim, the General Counsel must first
prove, by a preponderance of the evidence, “that employees
would reasonably view the grant of benefits as an attempt to in-
terfere with or coerce them in their choice on union representa-
tion.” Southgate Village Inc., 319 NLRB 916 (1995). If the Gen-
eral Counsel meets this burden, the employer must demonstrate
a legitimate business reason for the timing of the benefit. One
way to do this is to show the benefit was “part of an already es-
tablished Company policy and the employer did not deviate from
the policy upon the advent of the union.” American Sunroof,
supra; see also Real Foods Co., 350 NLRB 309, 310 (2007);
Holly Farms Corp., 311 NLRB 273, 274 (1993), enfd. 48 F.3d
1360 (4th Cir. 1995), affd. 517 U.S. 392 (1996); Jewish Home
for the Elderly of Fairfield County, 343 NLRB 1069, 1087–1090
(2004).
It is clear from the above-stated facts that the holiday banquet
the warehouse employees were invited to attend in December
2015 was a much more lavish event than the holiday banquets
dating back at least the past 7 years. In contrast to the holiday
banquets held during lunchtime at the warehouse from 2009–
2014, the 2015 banquet was held at a casino, employees were
eligible to receive more expensive prizes, they were invited to
bring a guest, drink tickets were provided, and the event lasted
longer than an hour.
12 The year-end employee appreciation awards took place at the hol-
iday banquet. There is no evidence of a separate year-end employee
awards event so the accruals labeled “year end associate recognition ac-
crual” and those labeled “year end banquet accrual” are apparently for
the same event.
13 Amounts in parentheses are credits, not expenses. (Tr. 625.)
SHAMROCK FOODS CO. 9
The Respondent argues that the 2015 banquet was in line with
past practice, and cites to K-Mart Corp., 336 NLRB 455, 470–
471 (2001), for support.14 In that case, however, there was no
quantification of the raffle prizes at the events at issue, as there
is here. Moreover, the Respondent cites to the administrative
law judge’s decision, which the Board did not discuss on ap-
peal.15
The Respondent attempts to conflate the PSA and other em-
ployee awards with the raffle awards. This argument is a red
herring and it fails, as does the Respondent’s attempt to compare
the annual holiday banquet to other unrelated employee events.
The Respondent also asserts that the prizes were proportionate
to the attendance, since the transportation department was also
included. The math simply does not add up, however, as calcu-
lated in the statement of facts above. In addition, the decision to
invite the warehouse employees to the type of offsite event usu-
ally only offered to the transportation department is telling. The
Respondent next points out that the $5,000 travel voucher was a
single award granted to a single employee. The voucher and the
various other prizes, however, were available for all employees
to win. In any event, the Respondent’s contentions regarding
past practice are belied by the evidence, as detailed above.
The Respondent argues that the banquet was not coercive be-
cause the union campaign was in abeyance by December 2015.
In support, the Respondent relies on Sigo Corp., 146 NLRB
1484, 1485–1486 (1964). In Sigo, the union filed a petition for
representation on June 5, 1963, but withdrew it on June 13. On
June 17, the company announced a new insurance plan. The
Board found this was not unlawful because, at the time the ben-
efit was offered, the union had withdrawn its petition and the
employer had no notice that the union intended to continue its
organizational activity or to file another petition. In the instant
case, no petition had been filed or withdrawn. There is nothing
to suggest the level of finality to the organizing drive was com-
municated to the Respondent as it was in Sigo. The Respondent
contends, nonetheless, that the Union’s organizing drive was es-
sentially dead by May 2015. This is squarely contradicted by the
fact that Phipps and a group of employees distributed flyers and
talked to employees in the break room about the Union during
October–December 2015. Also, in November 2015, a group of
employees picketed at the warehouse, holding signs that said,
“Workers United to Bring Tom Wallace Back.” (GC Exh. 23; Tr.
483.) In December 2015, employees distributed flyers about the
Respondent’s treatment of its workers. (GC Exh. 22; Tr. 418.)
It is also undisputed that the Union was pursuing charges
against Shamrock around the time of the annual holiday banquet.
Employee Andres Contreras filed a charge against Shamrock al-
leging unfair labor practices on October 13, 2015, and the Union
filed unfair labor practice charges on October 28 and December
11, 2015.16 Shamrock Foods, JD-49-16 (NLRB Div. of Judges,
June 10, 2016). On September 8, 2015, the General Counsel

14 The Respondent cites to the factors set forth in B&D Plastics, 302
NLRB 245 (1991), which apply to pre-election cases. This is not such a
case, but a more rigid application of the B&D factors would not change
my decision.
filed a petition for injunction under Section 10(j) of the Act in
the U.S. District Court for the District of Arizona. A complaint
alleging numerous unfair labor practices issued on July 21, 2015,
and was amended in August and September. A hearing regarding
the complaint took place between September 8–16, 2015, over-
seen by Administrative Law Judge (ALJ) Jeffrey Wedekind.
The management officials who testified included McClelland,
Engdahl, and Vaivao. The record was held open after the hearing
to allow for investigation of a new charge the Union had filed
seeking a remedial bargaining order.17 The Respondent submit-
ted new documents into the record on October 21, 2015. Sham-
rock Foods, JD (SF)-05-16 (NLRB Div. of Judges, February 11,
2016). On September 11, 2015, the Respondent filed a request
for special permission to appeal to the Board ALJ Wedekind’s
order denying its petition to revoke a subpoena duces tecum. On
December 1, 2015, the Board denied this request. Shamrock
Foods, 2015 WL 7769413 (2015). It is safe to say the Union’s
pursuit of various unfair practice charges was in full force during
the time period leading up to the annual holiday banquet.
With regard to the pay, it is undisputed that employees were
paid for four hours to attend the 2015 banquet. In the past, em-
ployees were paid for the time beyond their 30-minute lunch
break to attend the banquet, which generally lasted about an
hour. The Respondent points to Vaivao’s testimony that off-duty
employees were paid four hours to attend previous banquets. His
testimony on this point is confusing, however:
Q Were you one of the individuals that helped or participated
in the decision that they would be paid?
A [Vaivao]Yes.
Q And what did you consider in making that decision?
A Considering---trying to standardize it. Transportation had
been having their events and they were getting paid. To my
knowledge, what I've heard is to be consistent with DOT rules
but they were paid for attending. So for us to have this together
as an operation, we felt that it'd be consistent with what’s been
going on. We---it’s consistent---we paid the associates to attend
years past with, you know, the extended time past their half an
hour lunch. So it’s consistent with what we’ve done.
Q Okay. So you didn't see it or did you see it as a departure
from what you had done in the past?
A No, not at all. If an associate would come in on their day off,
we were paying the four hours to attend.
Q Okay. So if an associate came into the luncheons, you would
pay them for the time they were there?
A In the warehouse, yes.
(Tr. 554.) It is unclear whether off-duty warehouse associates
were paid for four hours or were paid for the time they came into
the warehouse for the event, which lasted well short of 4 hours.
Vaivao further testified that not very many off-duty employees
attended, describing it as, “Couple here, couple there
. . .” (Tr. 554–555.) In any event, the treatment of a couple of
15 It appears the dismissal of this allegation was not the subject of
exceptions, as the Board explicitly ruled on the various other administra-
tive law judge findings the parties had appealed.
16 The complaints stemming from these charges were dismissed on
June 10, 2016.
17 This charge was subsequently withdrawn.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees is not the same as the enhanced benefit of four hours
of pay to all employees to attend the holiday banquet in 2015.
Moreover, it is clear that paying warehouse employees four
hours for the holiday banquet was not established past practice.
An email written by Rose Brancato, a senior finance manager,
notes that the added payroll expense for the warehouse employ-
ees to attend the meeting was “outside of what was planned.”
Tom Petrola, operations analyst responded to Brancato’s email,
stating that “the payroll bump is new to Warehouse this year
. . . ” (GC Exh, 7.) The Respondent also contends that employ-
ees were paid to attend other events. The issue before me, how-
ever, is the Respondent’s past practice with regard to the holiday
banquet.
Based on the foregoing, I find the General Counsel established
that the Respondent conferred a benefit on the warehouse em-
ployees that would reasonably be viewed as an attempt to coerce
them in their choice of union representation.
The burden now shifts to the Respondent to demonstrate a le-
gitimate business reason for the timing of the benefit. The Re-
spondent admits that the record does not reflect the precise date
the decision to hold the banquet off-site in the evening was made
(R. Br. 5, fn. 6), but argues it must have been made by October
2014, since it began setting aside greater accruals that month
than it had previously. When directed to certain months reflected
in the Respondent’s exhibit showing accruals, Petrola testified
that around $3,000 per month was accrued for the 2014 holiday
banquet, while $7,000 per month was accrued for the 2015 holi-
day banquet. (Tr. 625–626). This testimony does not withstand
scrutiny, however, as the record reflects that in October 2014,
$7,000 was set aside for the banquet, while in both October 2012
and October 2013, $10,000 was set aside.18 For the months Feb-
ruary–April 2015, accruals were made and rescinded, essentially
resulting in no accruals for those months. By contrast, the Re-
spondent accrued $3,000 in February 2014, and 7,000 in each of
the months from April–June 2014. The accruals simply fail to
establish when the decision was made to change the location and
timing of the banquet.19
The Respondent contends that there was not enough space in
the warehouse auditorium to continue to hold the holiday ban-
quet on-site.20 There were two more employees in 2015 than in

18 For this reason, I do not credit Petrola’s testimony. I have fully
reviewed the entire record and carefully observed the demeanor of all the
witnesses. I have considered the apparent interests of the witnesses; the
inherent probabilities in light of other events; corroboration or the lack
of it; consistencies or inconsistencies within the testimony of each wit-
ness, and between witnesses with similar apparent interests. See, e.g.,
NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). Testimony or other
evidence in contradiction to my factual findings has been carefully con-
sidered but discredited. Where there is inconsistent evidence on a mate-
rial point, my credibility findings are incorporated into my legal analysis.
19 Vaivao, who was involved in the decision about where to hold the
banquet, was not asked about the timing. The General Counsel has re-
quested an adverse inference pursuant to Flexsteel Industries, 316,
NLRB 745, 758 (1995). I find such an inference is warranted and con-
clude that Vaivao would have testified that the decision was made after
the Respondent became aware that employees had contacted the Union.
I likewise find McClelland would have so testified if he had complied
with the subpoena and appeared at the hearing. I further find McClelland
would have testified that the reason Shamrock granted the warehouse
2014 when the banquet was held in the auditorium, and the em-
ployees who had the day off on the day of the banquet usually
did not attend. (R. Exh. 13; Tr. 554–555.) This explanation,
therefore, is unpersuasive.21
In sum, I find the General Counsel has met its burden to prove
the Respondent violated Section 8(a)(1) by conferring benefits
to dissuade employees from supporting the Union as alleged.
E. Thomas Wallace Settlement Agreement
Complaint paragraphs 6(a),(b),(d), and 8 allege that on about
February 11, 2016, the Respondent solicited its employee
Thomas Wallace to sign an agreement providing that, in ex-
change for the payment to him in the gross amount of
$214,270.30, he agree to a release and waiver, in violation of
Section 8(a)(3) and (1).
1. Facts
Thomas Wallace (Wallace), a former warehouse worker, was
terminated on April 6, 2015.22 He was an outspoken Union sup-
porter, and, in a previous decision, ALJ Wedekind determined
he was unlawfully terminated based on his union activities.
Shamrock Foods Co., JD (SF)-05-16, supra. On February 1,
2016, the U.S. District Court for the District of Arizona ordered
Shamrock to offer Wallace reinstatement. (GC Exh. 23.)
After his termination, but prior to the order reinstating him,
Wallace remained active with the Union. In November 2015, he
and Phipps picketed, holding signs that said, “Workers United to
Bring Tom Wallace Back.” (GC Exh. 23; Tr. 483.) In December
2015, employees, including Wallace, distributed flyers about the
Respondent’s treatment of employees. (GC Exh. 22; Tr. 418.)
Phipps also created a flyer about the order reinstating Wallace,
and he and coworkers distributed it at the warehouse on February
9–11. (GC Exh. 11; Tr. 420.) Phipps perceived that many of his
coworkers were excited about Wallace returning to work, but
many were skeptical that it would happen. (Tr. 424.)
At the time of his termination, Wallace’s hourly rate was
$12/hour plus applicable bonuses. On average he earned about
$27/hour. (Tr. 512–513.)
On February 5, 2016, Beake sent Wallace a letter offering him
reinstatement at his hourly rate, or payment of $78,000 to waive
reinstatement. (GC Exh. 9.) In the letter, Beake assured Wallace
employees enhanced prize opportunities and paid time to attend the ban-
quet was to discourage their support for the Union. I note that my deci-
sion would be the same without these adverse inferences.
20 The Respondent’s brief cites to Vaivao’s testimony at p. 549 for
the proposition that the warehouse party was broken down by shift due
to space constraints. (R. Br. p. 4, citing Tr. 5439, lines 3–16.) The cited
testimony, however does not reference space constraints as the reason
for holding one party for the day shift and another for the night shift.
21 The Respondent did not argue in its brief that productivity was a
factor in the decision to hold the holiday banquet in the evening. Given
Engdahl’s testimony that the banquet typically lasted about an hour (of
which 30 minutes was a lunch break) and the day was extended to make
up for the time spent at the banquet, such an argument would be unper-
suasive without more specific evidence than appears in the record.
22 Wallace’s termination was adjudicated in a previous proceeding
before ALJ Jeffrey Wedekind. Judge Wedekind found that Wallace’s
termination violated Sec. 8(a)(3) and (1) of the Act. See JD(SF)–05–16,
supra.
SHAMROCK FOODS CO. 11
that acceptance of the settlement was “purely voluntary” and that
a decision to accept reinstatement instead of a lump sum would
not be held against him. Beake informed Wallace that ac-
ceptance of the offer would not prevent the Board from seeking
a remedial posting referencing his termination. Beake also as-
sured Wallace that his discharge would not be used against him
in any way. Wallace did not seriously consider this offer and
was focused on returning to work. (Tr. 489.)
Beake’s letter instructed Wallace to call Vines-Bright by Feb-
ruary 12 and let her know whether he wanted to return to work.
Wallace called Vines-Bright on February 8 and informed her that
he was ready to return to work.23 (Tr. 490–491.) Wallace asked
some questions about his schedule and chain of command.
Vines-Bright said she would get back to him. (Tr. 214–215.)
Vines-Bright called him back the following day to tell him his
schedule would be the same as it was before his termination. She
offered an additional $100,000.24 (Tr. 492–493.) Vines-Bright
went on vacation, so Natalie Wright, a human resources special-
ist, followed up with Wallace. She had been told that Shamrock
did not want Wallace to return to work. (Tr. 231.) Wallace told
Wright he was declining Shamrock’s offer and said it would take
$350,000 plus three years of medical coverage for him to agree
not to return to work. (Tr. 232–235; 495–496.) Wright ex-
pressed that this might be too high and asked if there was wiggle
room. Wallace said that Shamrock needed to come in strong and
mentioned that the warehouse was going to “go bananas” be-
cause of all the union activity that had been taking place. (Tr.
496–497.)
On February 11, Wright orally conveyed an offer of
$214.270.30 to Wallace, and sent him a draft of the offer. (GC
Exh. 16; Tr. 235.) The following day, February 12, Wallace
signed a settlement agreement waiving reinstatement in ex-
change for $214, 270.30. (GC Exh. 8.) The agreement resolved
a charge Wallace had made with the Equal Employment Oppor-
tunity Commission (EEOC) alleging disability discrimination.
(Tr. 524.) The agreement states, in relevant part:
In exchange for your decision to waive your right to return to
work at Shamrock and the release of claims explained below,
you will receive a check in the gross amount of $214,270.30,
less FICA and Medicare tax deductions that are mandatory, de-
spite your exempt status designation on your W-4.
. . .
It is understood that, in exchange for your Settlement Payment
set forth in this letter, you release and waive the right to return
to your former position with Shamrock.
. . .
You also waive any claimed right or opportunity to seek
reemployment, reinstatement, new employment, or an inde-
pendent contractor relationship with Shamrock or any of

23 Though she did not recall specifics, Vines-Bright recalled that Wal-
lace intended to return to work. (Tr. 212.)
24 There are some conflicts with regard how and precisely when the
various offers were conveyed, but none of them are material. With re-
gard to any conflicts between Wallace and Vines-Bright, I credit Wallace
Shamrock’s parent, subsidiary or affiliated entities, at any loca-
tion, now or ever in the future, and agree that you will not apply
for nor seek in any way to be reinstated, reemployed, retained
or hired by any of them in the future.
Nothing in this Agreement is intended to, or shall, interfere
with your ability to file or otherwise institute a charge with an
administrative agency alleging discrimination under federal,
state, or local civil rights, labor and/or employment discrimina-
tion laws (including, but not limited to, Title VII, the ADA, the
NLRB, and the ADEA). However, you waive any right, and
you shall not be eligible, to any relief, remedies, recovery, or
monies in connection with any such charge against Shamrock,
regardless of who filed or initiated any such compliant, charge,
or proceeding.
. . .
You agree to reasonably cooperate with the Company in con-
nection with any matter which you were involved or any exist-
ing or potential claim, investigation, administrative proceeding,
lawsuit or other legal or business matter which arose during
your employment by the Company, as reasonably requested by
the Company.
Wallace’s termination and subsequent failure to return to
work impacted negatively on the Union’s organizing efforts. In
June 2016, only about 25 percent of the employees who had ini-
tially signed cards re-signed them. (Tr. 425–428, 443–446, 451,
462–465.)
2. Analysis
The parties disagree on the applicable legal framework. The
General Counsel argues the case should be analyzed under
Wright Line, while the Respondent argues it should be analyzed
under Independent Stave. There are problems with both ap-
proaches.
Independent Stave Co., 287 NLRB 740, 743 (1987), sets forth
the relevant considerations for approving non-Board settlements.
The complaint allegation, coupled with the nature and posture of
the settlement agreement at issue, render Independent Stave in-
applicable.25
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982), governs mixed-mo-
tive cases where discriminatory intent is alleged. To prove a vi-
olation under Wright Line, the General Counsel must make an
initial showing “sufficient to support the inference that protected
conduct was a ‘motivating factor’ in the employer’s decision.”
251 NLRB at 1089. If this is accomplished, the burden shifts to
the employer “to demonstrate that the same action would have
taken place even in the absence of the protected conduct.” Id. I
agree with the Respondent that a typical motive-based analysis
that considers the legitimacy of an agreement settling pending
because Vines-Bright admittedly had trouble recalling the conversations.
(Tr. 215–217.)
25 As noted by the General Counsel, the settlement agreement did not
resolve any unfair labor practice charges. The Board, therefore, was not
in a position to approve or deny it prior to its execution. (GC Br. 53.)
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
legal claims clashes with Federal Rule of Evidence 408.
Federal Rule of Evidence 408 states:
(a) Prohibited Uses. Evidence of the following is not admissi-
ble—on behalf of any party—either to prove or disprove the
validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising
to accept, or offering to accept—a valuable consideration in
compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotia-
tions about the claim—except when offered in a criminal case
and when the negotiations related to a claim by a public office
in the exercise of its regulatory, investigative, or enforcement
authority.
(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice, negating
a contention of undue delay, or proving an effort to obstruct a
criminal investigation or prosecution.
“While the rule is ordinarily phrased in terms of offers of com-
promise, it is apparent that a similar attitude must be taken with
respect to completed compromises when offered against a party
thereto.” Advisory Committee’s Notes to the Federal Rules of
Evidence, Notes on Rule 408 (1972).
The complaint allegation implicitly requires me to undertake
an analysis of the validity of the claims underlying the settle-
ment.26 The General Counsel argues that the “Respondent took
action by repeatedly and successfully soliciting Wallace to enter
into an agreement waiving his right to reinstatement in exchange
for a large sum of money.” This begs the question, what was a
reasonable sum of money?27 As the Respondent points out, the
settlement resolved Wallace’s EEOC disability discrimination
claim.28 If Wallace successfully prevailed on this claim, he
would be entitled to compensatory damages for any out of pocket
expenses and up to $300,000 for any emotional harm he could
prove resulted from discrimination. If warranted, punitive dam-
ages could be assessed. 42 U.S.C. § 1981a. Shamrock would
also be required to pay Wallace’s attorney fees. 42 U.S.C. §
12205. Without delving into the validity of claims underlying

26 The General Counsel here argues that the settlement agreement it-
self is unlawful, and that statements made in the course of settlement
discussions show coercion. This is different from cases where the Board
has stated that statements made during settlement negotiations may be
used to establish independent violations, such as threats, that occurred
during the course of settlement. See Miami Systems Corp., 320 NLRB
71 fn. 2 (1995), modified but affirmed on point, Uforma/Shelby Business
Forms v. NLRB, 111 F.3d 1284, 1293–1294 (6th Cir. 1997).
27 As held by the Court of Appeals for the Sixth Circuit, “Where, as
here, a party has raised an issue going to the validity or amount of a
claim, that is insufficient for admitting settlement offers that go to the
same issue because to do so violates Rule 408 on its face.” Stockman v.
Oakcrest Dental Center, P.C., 480 F.3d 791 (6th Cir. 2007).
28 The fact that the settlement resolved Wallace’s pending EEOC
claims renders it distinct from cases where the employer unilaterally of-
fers incentives in exchange for an agreement not to pursue potential
claims. See Mundy v. Household Fin. Corp., 885 F.2d 542, 546 (9th Cir.
the settlement, there is no way to know if the amount of money
the Respondent offered Wallace was reasonable.29
While it is abundantly clear the Respondent did not want Wal-
lace to return to work at Shamrock, this is always the case when
an employer decides that it will settle a case in exchange for an
employee waiving reinstatement.30 An allegation of unlawful
motivation, be it discrimination based on disability or anti-union
retaliation, underlies every agreement settling such claims. For
the Board to get involved in passing on the ultimate issue of mo-
tivation in a case that private parties have voluntarily settled im-
plicates broader considerations in a manner that conflicts with
the purpose of Rule 408, i.e., “promotion of the public policy
favoring the compromise and settlement of disputes.”31 Advi-
sory Committee Notes, supra; see also U.S. v. Contra Costa
County Water Dist., 678 F.2d 90 (9th Cir. 1982); Hughes Chris-
tensen Co., 317 NLRB 633, 635 (1995), enf. denied on other
grounds 101 F.3d 28 (5th Cir., 1996).
I recommend dismissal of complaint paragraph 6(a)(b), and
(d).
F. Allegations Concerning Employee D’Juan Williams
The complaint contains some related allegations concerning
employee D’Juan Williams. Complaint paragraphs 5(c) and 7
allege that the Respondent violated Section 8(a)(1) when on Au-
gust 14, 2016, Armando Gutierrez: (1) blamed its employees’
union activities for its stricter enforcement of work rules and
withdrawal of benefits for its employees; and (2) threatened its
employees with stricter enforcement of work rules and with-
drawal of benefits if they engaged in union activities. Complaint
paragraphs 5(e) and 7 alleged that on August 17, 2016,
Gutierrez: (1) blamed the Union’s organizing campaign and its
filing of unfair labor practice charges for its stricter enforcement
of work rules and withdrawal of benefits for its employees;32 (2)
blamed its employees’ union activities for its stricter enforce-
ment of work rules and withdrawal of benefits for its employees;
and (3) threatened its employees with stricter enforcement of
work rules and withdrawal of benefits for its employees if they
engaged in union activities. Complaint paragraphs 6(c), (d), and
8 allege that on about August 14, 2016, the Respondent ceased
its practice of allowing employee D’Juan Williams to leave work
early on certain days in violation of Section 8(a)(3) and (1).
1989); Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1343 (9th
Cir.1987); Clark Distribution Systems, Inc. 336 NLRB 747 (2001).
29 As the Board stated in PAC Structural Inc., 330 NLRB 868, at fn.
14 (2000), “it is not the Board’s place to determine whether a disabled
person actually had a viable ADA claim.”
30 To be clear, I am not deciding whether the terms of settlement
agreement, including the waivers, would hold up if challenged. I have
serious doubts the Respondent could enforce the waiver of any relief
Wallace may be entitled to in connection with a charge with the EEOC
or NLRB, or whether it could enforce the provisions requiring coopera-
tion with company, for example.
31 The evidence does not indicate fraud, duress, or other actions that
lead me to infer that Wallace signed the agreement involuntarily.
32 There was no evidence or argument presented about Gutierrez
blaming unfair labor practice charges for the alleged violations. Accord-
ingly, this portion of the complaint is dismissed.
SHAMROCK FOODS CO. 13
1. Facts
At all relevant times, Armando Gutierrez has been the dayshift
shipping or outbound manager. Supervisors under Gutierrez’s
direction schedule the loaders, and then Gutierrez reviews the
schedule before it is posted. Jake Myers is the shipping supervi-
sor for the day shift. Anthony Urias held the position prior to
Myers.33
D’Juan Williams has worked for the Respondent since 2009.
He was an order selector or “picker” until October 2012 and has
since worked a loader on the dayshift. He was moved into the
loader position because his quality as a picker was poor, but be-
cause he knew how to do both positions, he would go back and
forth as needed. (Tr. 592.)
In May or June 2015, Williams signed a union authorization
card. (Tr. 288.) In November or December 2015, he started at-
tending union planning committee meetings and asked cowork-
ers to sign cards. (Tr. 289.) In April and May 2016, he and
coworker Steve Ditto began passing out union flyers in the break
room by the operations manager’s office during lunch breaks and
talking with employees who had questions about the Union. (Tr.
289–291; GC Exh. 12.)
Loaders have fixed start times, but end times vary depending
on workload. (Tr. 109.) The goal is to have more than half of
the cases loaded onto trucks for delivery during the next shipping
day, which technically begins at 10:00 p.m. the night before. The
final case count is not available until 5:30 p.m. (Tr. 355–356.)
Williams’ shift begins at either 9:45 or 10 a.m. and usually
ends between 5:30 and 9 p.m. Beginning in October 2014, Wil-
liams received permission from Urias and Gutierrez to leave
early, usually between 4:30 and 4:45 p.m., on the third Wednes-
day of the month during the school year to attend PTA meetings
at his son’s school. He did not leave early in June or July because
school was not in session. Each month, Williams would remind
his supervisor the Sunday before the Wednesday he planned to
leave early. (Tr. 284–287.) Time records show that Williams left
before 5:00 on the following third Wednesdays between October
2014 and May 2016: October 15, 2014, August 19, 2015, No-
vember 18, 2015, January 20, 2016, February 17, 2016, April 20,
2016, and May 18, 2016. He left shortly after 5:00 on September
16, 2015, and October 21, 2015. Williams did not leave either
before or shortly after 5:00 on August 17, 2016, September 21,
2016, October 19, 2016, November 16, 2016, December 21,
2016, or January 18, 2017. (R. Exh. 9.)
On Sunday, August 14, 2106, Williams reminded Gutierrez
that he needed to leave early the following Wednesday, and
Gutierrez responded that he would not be able to. Williams
asked why, and Gutierrez said it was because of the flyers. (Tr.
295.) Gutierrez told Williams he needed to be fair to everyone
in the warehouse.34 (Tr. 116–118.) Williams requested a meet-
ing with Gutierrez and someone from human resources.
Gutierrez did not check with anyone else in management prior to
telling Williams on August 14 that he could not leave early on
August 17. (Tr. 117.)
On August 15, Gutierrez emailed Daniel Santamaria from HR

33 At the time of the hearing, Urias was the meat plant supervisor.
34 Gutierrez did not remember whether he told Williams the flyers
had anything to do with the reason he could not leave early. (Tr. 124.)
stating that Williams wanted to meet with him. Santamaria re-
sponded that he was not in, and asked what Williams needed.
Gutierrez replied, “Last year he was leaving early one Wed a
month for his kids school. I told him that I couldn't do it this year
because if I do it for him I would have to do it for everyone else.”
Santamaria emailed Gutierrez back stating, “Yes that was a good
answer to give him we can not (sic) do it for one and not others”
and recommended a meeting between Williams and Vines-
Bright. (GC Exh. 10.)
On August 17, 2016, Williams asked Vines-Bright why he
would not be able to leave early on certain Wednesdays. Vines-
Bright said she would look into it, and commented:
I mean I know that we . . . obviously you know about a lot of
labor issues that have been going on at the warehouse and stuff,
all the labor relations stuff going on so, you know obviously
we have to make sure that we're treating everybody equally and
fair and consistent with everybody, so that may have something
to do with it.
(GC Exh. 19.) After this discussion, Vines-Bright contacted
Gutierrez, who told her the warehouse was too busy to let Wil-
liams leave early.
Later on August 17, Williams attended a meeting with Vines-
Bright, Vaivao, and Gutierrez.35 Vines-Bright told Williams that
management had explained to her why it was difficult to let him
leave early, and turned it over to Vaivao and Gutierrez for elab-
oration. Williams stated, “Before you start, Armando was telling
me something on Sunday about the reason why. I want to hear
the reason why, that you were telling me on Sunday.” Gutierrez
said that if he let Williams leave early, he would need to let the
other employees leave early too. Williams replied, “I understand
that, but you were also saying something about a flyer, you had
mentioned a flyer.” Gutierrez responded, “Well, there were
things that were posted and there were things that were said, um,
that I wasn't fair to everyone. So the only way to knock that noise
is just to make sure . . . .” At this point, Vines-Bright interrupted,
stating, “Well, I mean, this doesn't have anything to do with the
flyer.” Williams then stated, “Well, this is what I'm saying, that
was mentioned, so that's . . . I'm trying to understand, why that
was brought up.” Gutierrez then said he was just trying to be fair
across the board.
Vaivao then stated that they could not accommodate everyone
because the caseload was too high, noting that the workload had
increased on the dayshift. He also said there were more routes
leaving before 10 p.m. After some back and forth, Williams re-
sponded that he had been permitted to leave early for two years,
even when they were in their busy season. Vaivao explained that
in the busy season they averaged 660,000 cases top ship but last
week they had 662,000. He noted that Williams was one of a
handful of employees with special requests, and they could not
accommodate him at the time, but would entertain it if and when
they could. Vines-Bright noted that Williams could use annual
leave, and Vaivao offered to switch his days off to accommodate
his schedule. (GC Exh. 20.)
35 Williams recorded the entire meeting.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Vaivao was not aware that Williams was going home early
every third Wednesday until Gutierrez called him to speak to
Williams about it in August. (Tr. 583, 586.) According to
Vaivao, Shamrock gained additional business from schools, and
the business from its customer Harkins was consolidated to
Tuesdays and Wednesdays. This required Williams to load an
additional truck on Wednesdays. Shamrock does not use tempo-
rary workers during the summer because caseloads are lower and
they want to ensure employees get 40 hours of work. (Tr. 584–
587.)
A review of shipping cases shows that the caseload was high-
est in the months of February–May for each of the fiscal years
from 2014–2016.36 (GC Exh. 13.)
2. Analysis
The Section 8(a)(1) legal standards set forth above apply. I
find that Gutierrez’s comment that Williams could not leave
early because of the flyers would reasonably tend to coerce em-
ployees and interfere with their rights, and it was therefore a vi-
olation of Section 8(a)(1). It is undisputed that union flyers crit-
ical of management were distributed at the warehouse in April
and May 2016. A reasonable employee would take the com-
ments to mean that there can be no more leniencies in scheduling
because of employees’ union activity.
I credit William’s testimony about the August 14 conversation
for a number of reasons. First, I found Williams to be a credible
witness. He testified in an open and forthcoming manner and did
not appear to embellish his testimony. Moreover, as a current
employee testifying against his own pecuniary interests, I find
his testimony particularly reliable. See fn. 8, supra. Finally, Wil-
liams’ testimony is not contradicted, as Gutierrez did not remem-
ber whether he told Williams the flyers had anything to do with
the reason he could not leave early. (Tr. 124.)
Further bolstering Williams’ testimony is the back-and-forth
that occurred at the August 17 meeting where Williams reminded
Gutierrez he had also said something about a flyer. Gutierrez
responded, “Well, there were things that were posted and there
were things that were said, um, that I wasn't fair to everyone. So
the only way to knock that noise is just to make sure . . . .” This
comment, like the August 14 comment, would reasonably be
construed to mean that union activity critical of management
would be dealt with in the form of stricter adherence to rules and
withdrawal of previously granted leniencies.
Turning to the Section 8(a)(3) allegation, the Act states that it
is an unfair labor practice for an employer “by discrimination in
regard to hire or tenure of employment . . . to encourage or dis-
courage membership in any labor organization.” Section 8(a)(3)
claims involving mixed motives are analyzed under Wright Line,
supra. To prove a violation under Wright Line, the General
Counsel must make an initial showing “sufficient to support the
inference that protected conduct was a ‘motivating factor’ in the
employer's decision.” 251 NLRB at 1089. The elements

36 GC Exh. 13 does not reflect the number of cases that must be loaded
by 10 p.m. (Tr. 597.)
37 Vaivao was evasive on this point until confronted with his prior
testimony. (Tr. 142–147.)
38 This finding is relevant even though Vaivao was not the decision-
maker. “[I]t is well established that the Board imputes a manager’s or
commonly required to support this showing are union activity,
employer knowledge of that activity, and antiunion animus by
the employer. Briar Crest Nursing Home, 333 NLRB 935, 936
(2001).
If the General Counsel makes the initial Wright Line showing,
the burden shifts to the employer “to demonstrate that the same
action would have taken place even in the absence of the pro-
tected conduct.” Wright Line, supra. The employer cannot carry
this burden merely by showing that it also had a legitimate reason
for the action, but must persuade, by a preponderance of the ev-
idence, that the action would have taken place absent the pro-
tected activity. Dentech Corp., 294 NLRB 924, 956 (1989).
I find the General Counsel has met the initial Wright Line bur-
den. It is undisputed that Williams passed out union flyers criti-
cal of management in April and May 2016. On August 14, when
Gutierrez told Williams he could not go home anymore, he said
it was because of the flyers, which is direct evidence of discrim-
inatory intent. Gutierrez’s comments about the flyers on August
14 and 17 prove he knew about them. There is no evidence re-
garding distribution of any other flyers critical of management
in or around this same time period. I find, therefore, that
Gutierrez’s comments referred to union flyers.
The General Counsel contends an inference should be drawn
that floor captain Richard Sanchez informed management about
the flyers because he walked in the direction of Vaivao and
O’Meara’s offices following a heated conversation in the break
room about the content of one of the union flyers in May 2016.
(GC Br. 43.) I decline to make this specific inference because it
would be too speculative. The evidence does establish, however,
that through May 2016, employees reported to Vaivao when
other employees would talk about the Union.37 (Tr. 147–148.)
Williams and Ditto passing out flyers and talking to employees
in the break room was the only employee union activity that oc-
curred in May 2016. Accordingly, I find that Vaivao was aware
of it.38
Turning to animus, it is clear from the content of his comments
that Gutierrez took umbrage with the flyers’ suggestion that em-
ployees were not being treated fairly. See Nichols Aluminum,
LLC, 361 NLRB 216 (2014) (General Counsel is not required to
show “particularized motivating animus towards the employee's
own protected activity or to further demonstrate some additional,
undefined ‘nexus’ between the employee's protected activity and
the adverse action.”) Moreover, antiunion animus can be in-
ferred from the timing of the change to Williams’ schedule,
which occurred the first Sunday he reminded Gutierrez of his
PTA meeting following distribution of the union flyers. See
Golden Day Schools v. NLRB, 644 F.2d 834, 838 (9th Cir. 1981).
Animus can also be inferred from the presence of other unfair
labor practices, as found herein and in prior recent decisions.
supervisor’s knowledge of an employee’s protected concerted activities
to the decisionmaker, unless the employer affirmatively establishes a ba-
sis for negating such imputation.” G4S Secure Solutions, Inc., 364
NLRB No. 92, slip op. at 4 (2016).
SHAMROCK FOODS CO. 15
Richardson Bros. South, 312 NLRB 534 (1993); Aliante Gam-
ing, LLC, 364 NLRB No. 78, slip op. at 1 fn.5 (2016).39
The Respondent argues that management’s decision not to let
Williams leave early in August 2016 and thereafter was not an
adverse action. Specifically, the Respondent argues that
Gutierrez had accommodated Williams by permitting him to
leave early in the past, and it offered continued accommodation
in the form of changing his schedule or permitting him to use
annual leave every fourth Wednesday.40 The Respondent also
argues that Williams was not routinely granted permission to
leave early every third Wednesday. While both the Respond-
ent’s assertions are true, I still find Williams was subjected to an
adverse action when his previous flexibility to leave early on the
third Wednesday of every month, subject to approval, was taken
away in blanket fashion. It is clear from Gutierrez’s August 15,
2016, email to human resources stating, “Last year he was leav-
ing early one Wed a month for his kids school. I told him that I
couldn’t do it this year because if I do it for him I would have to
do it for everyone else” that Gutierrez was aware of Williams’
regular practice. The fact Williams did not leave early every sin-
gle third Wednesday does not save the wholesale rescission from
constituting an adverse action. See Wal-Mart Stores, Inc., 340
NLRB 220 (2003) (Rescinding previously granted schedule de-
viation was adverse action).
Based on the foregoing, I find the General Counsel has made
an initial showing sufficient to support the inference that pro-
tected conduct was a motivating factor in its decision rescind its
previously-granted flexibility for Williams to leave work early
as alleged. The burden therefore shifts to the Respondent to
show the same action would have taken place even absent union
activity. Given Gutierrez’s comment to Williams that his deci-
sion was motivated by the union flyer, I find this burden has not
been met.
After Williams requested a meeting with human resources to
discuss the matter, Vaivao offered an explanation that due to
caseloads and Williams’ position as a loader, the workload was
too heavy to permit him to leave early. I find this is a pretextual
after-the-fact justification. Prior to Vaivao’s explanation,
Gutierrez had already told Williams he could not leave early be-
cause of the flyer. He did not check with anyone else in man-
agement prior to giving this reason. In addition, Gutierrez had
already conveyed to human resources that he told Williams he
could no longer accommodate him because he had to be fair to
everyone. Vaivao admittedly was not aware that Williams had
going home early on some Wednesdays until Gutierrez called
him to speak to Williams in August 2016. The Respondent’s
attempts to paint Vaivao as the decisionmaker are not supported
by the weight of record evidence, which shows that Vaivao re-
acted to the decision, but he did not formulate it.41

39 Consistent with the Board’s analysis in Aliante Gaming, I do not
rely on the findings in previous ALJ decision to establish animus by
themselves but consider them as part of the totality of the circumstances.
40 The latter accommodation does not square with the Respondent’s
stated rationale that Williams was no longer permitted to leave early be-
cause of workload.
41 I specifically discredit Vaivao’s testimony that he made the final
decision because the evidence shows Gutierrez did not inform Vaivao of
his decision not to let Williams leave early until after it had occurred. I
Based on the foregoing, I find the General Counsel has sus-
tained the burden to prove the allegations related to D’Juan Wil-
liams as alleged in the complaint.
G. Cell Phone Rule
Complaint paragraphs 5(d) and 7 allege that the Respondent
violated Section 8(a)(1) when, on August 16, 2016, Jake Myers
promulgated and since then maintained an overly-broad and dis-
criminatory rule or directive prohibiting its employees from hav-
ing cell phones on the warehouse floor.
1. Facts
On January 2, 2015, Shamrock distributed a policy on
“Head/Ear & Cell Phone Use” which states:
In an effort to Improve the workplace safety environment, en-
sure the safety of our associates and to maintain compliance
with State, Federal and regulatory agencies, the use of all mu-
sical devices to include but not limited to cell phones and
head/ear phone use within the warehouse is being discontinued
effective January 4th, 2015.
Beyond the impact of the individual noise level, personal music
devices create a potential hazard. They impair a worker's ability
to hear surrounding sounds and compromise the user's general
alertness and concentration; therefore they may be considered
a hazard within the workplace. This is especially true if work-
ing around moving equipment or in circumstances where a
worker must be able to hear warning sounds.
An EMERGENCY phone line is in place should a family
member need to be contacted while at work and the message
will be relayed to you. This line is for emergency use ONLY.
(R. Exh. 3.) 42
On August 16, 2016, Myers told Williams he could not have
his cell phone on the workroom floor. Williams said he used it
as a recorder, not a cell phone, and Myers responded that it was
still a cell phone. (GC Exh. 18; Tr. 178, 298.)
2. Analysis
The General Counsel has the burden to prove that a rule or
policy violates the Act. In determining whether a work rule vi-
olates Section 8(a)(1), the appropriate inquiry is whether the rule
would reasonably tend to chill employees in the exercise of their
Section 7 rights. Lafayette Park Hotel, 326 NLRB 824, 825
(1998), end. 203 F.3d 52 (D.C. Cir. 1999).
Under the test enunciated in Lutheran Heritage Village-Livo-
nia, 343 NLRB 646 (2004), if the rule explicitly restricts Section
7 rights, it is unlawful. If it does not, “the violation is dependent
upon a showing of one of the following: (1) employees would
note that even if Vaivao’s explanation provided a legitimate basis for the
Respondent’s actions, the evidence belies a showing that the Respondent
acted pursuant to it. See Dentech Corp , supra; Metro-West Ambulance¸
360 NLRB 1029, 1030 (2014). I also infer that McClelland, had he ap-
peared, would have testified that he knew about Williams’ union activity.
42 Judge Wedekind previously ruled that this policy was not overly
broad, observing that “the rule on its face does not ban employees from
carrying cell phones or using them to take pictures or videos.” JD(SF)–
05–16, p. 59.
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reasonably construe the language to prohibit Section 7 activity;
(2) the rule was promulgated in response to union activity; or (3)
the rule has been applied to restrict the exercise of Section 7
rights.” Id. at 647. A rule does not violate the Act if a reasonable
employee merely could conceivably read it as barring Section 7
activity. Rather, the inquiry is whether a reasonable employee
would read the rule as prohibiting Section 7 activity. Id. The
question of whether a rule or policy violates the Act requires a
balancing between an employer's right to implement certain le-
gitimate rules of conduct in order to maintain a level of produc-
tivity and discipline at work with the right of employees to en-
gage in Section 7 activity. Firestone Tire & Rubber, 238 NLRB
1323, 1324 (1978).
The Board must give the rule under consideration a reasonable
reading and ambiguities are construed against its promulgator.
Lutheran Heritage, supra at 647; Lafayette Park Hotel, supra at
828; and Cintas Corp. v. NLRB, 482 F.3d 463, 467–470 (D.C.
Cir. 2007). Moreover, the Board must “refrain from reading par-
ticular phrases in isolation, and it must not presume improper
interference with employee rights.” Lutheran Heritage, supra at
646.
On its face, the Respondent’s rule is not overly-broad, as it
speaks only to musical devices. Myers extended it, however,
when he told Williams he could not have his cell phone on the
workroom floor. Cell phones are used for more than listening to
music—they are also commonly used as cameras and recording
devices. The General Counsel cites to Rio All-Suites Hotel &
Casino, 362 NLRB 1690, 1693 (2015), where the Board found a
rule barring the use of camera phones and recordings without
prior permission was overly-broad. See also Whole Foods Mar-
ket, 363 NLRB No. 87 (2015). This caselaw supports the Gen-
eral Counsel’s contention that Myers’ broadly worded instruc-
tion to Williams would reasonably be construed as prohibiting
him from using his cell phone to memorialize activity protected
by Section 7, and therefore runs afoul of Lutheran Heritage.
The Respondent contends that Williams understood Myers’s
instruction as simply an enforcing the written policy. Williams
testified, however, that he understood that he was not permitted
to have his cell phone on the workroom floor, which is broader
than the written policy. (Tr. 382.)
While the policy provides business justification for not allow-
ing musical devices in the warehouse, the Respondent provided
no justification for Myers’ more broad proscription. Notably,
Williams told Myers he used it his phone as a recording device,
not as a phone, but this did not change Myers’ instruction. Ac-
cordingly, I find the General Counsel has met the burden to prove
Myers promulgated and enforced an overly-broad rule regarding
cell phone usage.
H. Operations Manager Tim O’Meara’s Comments to
Employee Mike Meraz
Complaint paragraphs 5(b) and 7 alleged the Respondent vio-
lated Section 8(a)(1) when June 8 or 9, 2016, Tim O’Meara: (1)
blamed the Union’s organizing campaign for preventing Re-
spondent from making changes to its employees’ wages, bene-
fits, and other working conditions by telling its employees that
every policy and pay plan was frozen because of Union; and (2)
promised its employees improvements in Respondent’s
disciplinary policy if its employees refrained from continued or-
ganizational efforts by telling its employees that, if not for the
Union campaign, Respondent would consider changing its poli-
cies.
1. Facts
On June 9, 2016, forklift operator Mike Meraz met with
O’Meara in Santamaria’s office. Meraz recorded the meeting.
O’Meara gave Meraz a disciplinary form that reflected safety vi-
olation points assessed to him after he broke a sprinkler in the
warehouse. Meraz question whether the points stayed on his rec-
ord for two years, and O’Meara responded that they did. The
following exchange ensued:
Meraz: Yeah, were they ever going to re-look at that?
O’Meara: “I will be honest with you right now. Every policy,
every pay plan that is in the warehouse is frozen.”
Meraz: What I mean is as far as . . .
O’Meara: Because of the current situation we’re in. There’s
nothing I can do with anything.
Meraz: So even for that two years, 'cause that seems, I mean,
excessive. I've been doing this stuff since '85 and I've never
seen anywhere being like that.
O'Meara: Yeah, well, um, unfortunately it can't even be looked
at.
Meraz: Yeah.
O'Meara: Now if we weren't in our current situation, yeah, I
think in years past we’ve had policy committees that have been
put together by various people that have, you know, looked at
policies and changed them.
(GC Exh. 21.) O’Meara testified at a hearing on May 25, 2016,
in cases 28–CA–167910 and 28–CA–169970, which included al-
legations that he was involved in committing unfair labor prac-
tices. Shamrock Foods, JD (SF)-35-16 (NLRB Div. of Judges,
September 28, 2016).
2. Analysis
The Section 8(a)(1) legal standards set forth above apply here.
O’Meara testified that he did not recall telling Meraz that pol-
icies and pay plans were frozen or that if they weren’t in the cur-
rent situation, the safety policies and pay plans could be looked
at. (Tr. 252–254.) The tape recording of the conversation re-
veals that O’Meara did in fact make these comments.
The General Counsel cites to Grouse Mountain Assoc., 333
NLRB 1322, 1324 (2001), where the Board held a comment that
the employer “could not implement any new benefits while un-
ion organizing efforts were active,” was overly broad because it
effectively placed the delay on the union campaign. See also
Kentucky Fried Chicken, 341 NLRB 69, 69–70 (2004).
In the instant case, O’Meara blamed the “current situation” for
the fact that policies and pay plans in the warehouse were frozen,
and there was nothing he could do about anything. The “current
SHAMROCK FOODS CO. 17
situation” is easily decoded as the union’s activity and ongoing
litigation related to it.43 The Respondent pointed to no evidence
regarding any other “situation” that required Shamrock to freeze
all policies in the warehouse.
In addition, O’Meara said that if they weren’t in their current
situation, “yeah, I think in years past we’ve had policy commit-
tees that have been put together by various people that have, you
know, looked at policies and changed them.” This implies that
if there was not union activity, the Respondent would be open to
making improvements to its disciplinary policy.
Based on the foregoing, I find the General Counsel has proven
the allegations related to Tim O’Meara’s comments to Mike Me-
raz.
CONCLUSIONS OF LAW
By granting employees benefits in the form of more elaborate
prizes and enhanced paid time at its annual holiday banquet,
blaming the Union for preventing changes to wages, benefits,
and other working conditions; promising improvements in its
disciplinary policy if its employees refrained from continued or-
ganizational efforts; blaming the Union and employees’ union
activities for stricter enforcement of rules and withdrawal of ben-
efits; threatening employees with stricter enforcement of rules
and withdrawal of benefits; and promulgating and maintaining
an overly-broad rule prohibiting cell phones on the warehouse
floor, the Respondent has violated Section 8(a)(1) of the Act.
By rescinding its practice of permitting employee D’Juan Wil-
liams (Williams) to leave work early on certain days to attend
PTA meetings, the Respondent has violated Section 8(a)(3) and
(1) of the Act.
By the above conduct, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent did not otherwise engage in any other unfair
labor practices alleged in the consolidated complaints in viola-
tion of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having granted employees benefits in the form of more elab-
orate prizes and enhanced paid time at its annual holiday ban-
quet, the Respondent will be ordered to cease and desist from
these actions.
Having blamed the Union for preventing changes to wages,
benefits, the Respondent will be ordered to cease and desist from
this action.
Having blamed the Union and employee’s union activities for
stricter enforcement of rules and withdrawal of benefits, the Re-
spondent will be ordered to cease and desist from this action.
Having promised improvements in its disciplinary policy if its
employees refrained from continued organizational efforts, the

43 For this reason, the Respondent’s reliance on The Singer Co. 199
NLRB 1195 (1972), and like cases is misplaced.
44 If Judge Wedekind’s findings are not upheld on appeal, this ra-
tionale will not serve as a basis for the notice reading. This also holds
Respondent will be ordered to cease and desist from this action.
Having threated employees with stricter enforcement of rules,
the Respondent will be ordered to cease and desist from this ac-
tion.
Having promulgated and maintained an overly-broad rule pro-
hibiting cell phones on the warehouse floor, the Respondent will
be ordered to cease and desist from this action.
Having found that the Respondent rescinded its practice of
permitting flexibility in D’Juan Williams’ schedule to attend
PTA meetings in violation of Section 8(a)(3) and (1) of the Act,
the Respondent will be ordered to return to its previous practice
of permitting flexibility in D’Juan Williams’ schedule to attend
PTA meetings, and to refrain from rescinding flexibility in his
work schedule or the work schedule of any other employee for
discriminatory reasons.
I will order that the Employer post a notice in the usual man-
ner, including electronically to the extent mandated in J. Picini
Flooring, 356 NLRB 11, 15–16 (2010). In accordance with J.
Picini Flooring, the question as to whether an electronic notice
is appropriate should be resolved at the compliance phase. Id.,
slip op. at 3.
I will also order that the Respondent hold a meeting or meet-
ings, scheduled to have the widest possible attendance, at which
the attached notice marked “Appendix” shall be read to employ-
ees by Kent McClelland in the presence of a Board agent. This
remedial action is intended to ensure that employees “will fully
perceive that the Respondent and its managers are bound by the
Act’s requirements.” Federated Logistics & Operations, 340
NLRB 255, 258 (2003), enfd. 400 F.3d 920 (D.C. Cir. 2005).
The Board has broad authority under Section 10(c) to devise
remedies that “effectuate the policies of the Act.” Sure-Tan, Inc.
v. NLRB, 467 U.S. 883, 900 (1984). In determining an appropri-
ate remedy, the Board has a duty “under Section 10(c) to tailor
its remedies to varying circumstances on a case by case basis, in
order to ensure that its remedies are congruent with the facts of
each case.” Diamond Walnut Growers, Inc., 340 NLRB 1129,
1132 (2003). As such, Thus, the Board has “broad discretion to
fashion ‘a just remedy’ to fit the circumstances of each case it
confronts.” Excel Case Ready, 334 NLRB 4, 5 (2001) (quoting
Maramont Corp., 317 NLRB 1035, 1037 (1995)); see also Pa-
cific Beach Hotel, 361 NLRB 709, 711 (2014).
Judge Wedekind previously determined that President and
CEO Kent McClelland was complicit in the commission of un-
fair labor practices, including the decision to terminate vocal un-
ion advocate Wallace.44 See JD(SF)–05–16, supra. In the instant
case, by virtue of adverse inferences, I have found that he was
complicit in the commission of unfair labor practices. The Union
and employees are now aware that McClelland refused to even
show up at the hearing, despite being served with a valid sub-
poena. Employees are undoubtedly left with the impression that
McClelland does not believe he is bound by the Act’s require-
ments. Federated Logistics & Operations, supra. Requiring
McClelland to read the notice, is a just remedy based on the
true if the Board considers any of Shamrock’s unfair labor practices
found by Judge Tracy in Shamrock Foods, JD (SF)-35-16, supra, as a
basis for the notice reading. I note that Judge Wedekind ordered a notice
reading in his decision.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
circumstances of this case, in that it will help to ensure employ-
ees that Shamrock’s President and CEO understands and takes
seriously his obligations to comply with the Act.45
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended46
ORDER
The Respondent, Shamrock Foods Company, Phoenix, Ari-
zona, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting employees benefits in the form of more elaborate
prizes and enhanced paid time at its annual holiday banquet;
(b) Blaming the Union and employees’ union activities for
preventing changes to wages, benefits, and other working condi-
tions;
(c) Blaming the Union and employees’ union activities for
stricter enforcement of rules and withdrawal of benefits;
(d) Promising improvements in its disciplinary policy if its
employees refrain from continued organizational efforts;
(e) Promulgating and maintaining an overly-broad rule pro-
hibiting cell phones on the warehouse floor;
(f) Discriminatorily rescinding its practice of permitting flex-
ibility in D’Juan Williams’ schedule to attend PTA meetings, or
rescinding flexibility in any employee’s schedule for discrimina-
tory reasons;
(g) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act
(a) Rescind any work rules prohibiting employees from using
cell phones or other recording devices to engage in protected ac-
tivity;
(b) Restore the flexibility in employee D’Juan Williams’
schedule to the same extent it had previously been granted;47
(c) Within 14 days of the date of the Board's Order, rescind
from its files any references to the unlawful change in D’Juan
Williams’ work schedule and notify him this has been done and
will not be used against him in any way, or, if there is no refer-
ence in the Respondent’s files, notify D’Juan Williams in writing
that the flexibility he was previously granted in his schedule has
been restored and that the schedule change will not be used
against him in any way.
(d) Within 14 days after service by the Region, post at its fa-
cility in Phoenix, Arizona, copies of the attached notice marked
“Appendix”48 in both English and Spanish. Copies of the notice,
on forms provided by the Regional Director for Region 28, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places including all places where no-
tices to employees are customarily posted. In addition to physical

45 I emphasize that this measure is remedial, not a punitive sanction.
46 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all purposes.
47 Any disagreement on this point will be addressed in compliance
proceedings if necessary.
posting of paper notices, the notices shall be distributed electron-
ically, such as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent customarily
communicates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the Re-
spondent 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 December 19, 2015.
(e) Within 14 days after service by the Region, hold a meeting
or meetings, scheduled to ensure the widest possible attendance,
at which the attached notice is to be read to the warehouse em-
ployees by the Respondent's President/CEO Kent McClelland in
the presence of a Board agent, with translation available for
Spanish-speaking employees.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. April 25, 2017
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 do anything to prevent you from exercising
these rights.
WE WILL NOT grant you benefits, such as more elaborate prizes
and enhanced paid time at our annual holiday banquet, in an ef-
fort to discourage you from supporting a union.
WE WILL NOT blame your union activity for preventing us from
making improvements to your pay plans or work policies.
48 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
SHAMROCK FOODS CO. 19
WE WILL NOT blame the Union or your union activity for our
stricter enforcement of work rules or threaten you with stricter
enforcement of work rules to discourage your union support.
WE WILL NOT promise you benefits or improved working con-
ditions based on whether you stop engaging in union activity or
stop supporting the Union.
WE WILL NOT announce work rules prohibiting you from using
your cell phones or other recording devices to engage in pro-
tected activity, such as documenting your working conditions,
and WE WILL rescind any such rules that prevent you from engag-
ing in that activity.
WE WILL NOT rescind our allowing flexibility in your work
schedules, such as leaving early on certain days, because you or
others engage in union activity.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL remove from our files all references to the stricter
schedule enforcement of D’Juan Williams, and WE WILL notify
him in writing that this has been done, or if there is no reference
in his file, WE WILL notify him in writing that the flexibility he
was previously granted in his schedule has been restored and the
schedule change will not be used against him in any way.
SHAMROCK FOODS COMPANY
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/28-CA-177035 or by using the QR code be-
low. 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.