US Foods, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 17, 2016

27-CA-158614 (N.L.R.B. Jun. 17, 2016)

JD(SF)-28-16
Boise, Idaho
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
U.S. FOODS, INC.,
and Case No. 27–CA–158614
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 483
Julia M. Durkin, Esq.
for the General Counsel.
Joseph S. Turner, Esq.
for the Respondent.
James M. Piotrowski, Esq.
for the Charging Party.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. This case was tried in Boise, Idaho
on February 2, 2016. The International Brotherhood of Teamsters, Local 483 (Charging Party or
Union or Local 483) filed the charge on August 24, 2015,1 first amended charge on October 9,
second amended charge on November 5, and third amended charge on December 7, against U.S.
Foods, Inc. (Respondent), and the General Counsel issued the complaint on December 23, and
amended complaint on January 13, 2016. Respondent filed a timely answer, and amended
answer. At the hearing, I granted the General Counsel’s motion to further amend the complaint.
The complaint and its amendments allege Respondent violated Section 8(a)(5) and (1) of
the National Labor Relations Act (the Act) when on August 1 it failed to bargain with the Union
before it reduced the wage rates and vacation and sick leave balances of bargaining unit
employees who voted in the National Labor Relations Board (the Board) election held on June
23. In addition, the General Counsel alleges this action also violated Section 8(a)(3) and (1) of
the Act. Furthermore, it is alleged that Respondent violated Section 8(a)(1) of the Act when in
about June 2015, Vice President of Operations Brad Forney (Forney) in Boise, Idaho, threatened
employees that their wages and vacation time would be reduced if they selected the Union as
their bargaining representative.

1 All dates are in 2015 unless otherwise indicated.
JD(SF)-28-16
2
As discussed below, I find that Respondent violated the Act as alleged.
On the entire record,2 including my observation of the demeanor of the witnesses,3 and
after considering the briefs filed by the General Counsel and Respondent,4 I make the following5
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
10
Respondent, a Delaware corporation with a place of business in Boise, Idaho, has been
engaged in the distribution of food products to restaurants, hotels, hospitals, schools and other
businesses. During the 12 months prior to the issuance of the complaint, Respondent purchased
and received at its Boise, Idaho place of business goods valued in excess of $50,000 directly
from points outside of the State of Idaho. Respondent admits, and I find, that it is an employer 15
engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
20
A. Background and Labor Organizations
The parties stipulated as follows (Jt. Exh. 1):

2 Although I have included citations to the record to highlight particular testimony or exhibits, my
findings and conclusions are not based solely on those specific record citations but rather on my review
and consideration of the entire record for this case. Furthermore, the transcripts in this case are generally
accurate, but I make the following corrections to the record: “Tr.” for transcript; “L.” for line: Tr. 11, L.
11: “reframe” should be “refrain”; Tr. 11, L. 19: “885” should be “8(a)(5)”; Tr. 15, L. 7.: “Settle” should
be “Seattle”; Tr. 18, L. 13: “fails” should be “calls”; Tr. 34, L. 4, 6:”Howder” should be “Haueter”; Tr.
67, L. 16: “road owe” should be “rodeo”; Tr. 126, L. 20: “they” should be “the”.
3 I further note that my findings of fact encompass the credible testimony and evidence presented at
trial, as well as logical inferences drawn therefrom. A credibility determination may rely on a variety of
factors, including the context of the witness’ testimony, the witness’ demeanor, the weight of the
respective evidence, established or admitted facts, inherent probabilities and reasonable inferences that
may be drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 NLRB 586,
589 (1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003). Credibility findings need not be all-or-nothing
propositions—indeed nothing is more common in all kinds of judicial decisions than to believe some, but
not all, of a witness’ testimony. Daikichi Sushi, 335 NLRB at 622. I have carefully considered the
testimony in contradiction to my factual findings, but I have discredited such testimony. In this matter,
no significant credibility disputes exist. The witnesses all testified similarly to the relevant facts. There
were few occasions of inconsistent testimony, which is common, but these inconsistencies were
insignificant.
4 Other abbreviations used in this decision are as follows: “GC Exh.” for General Counsel’s exhibit;
“R. Exh.” for Respondent’s exhibit; “Jt. Exh.” for Joint Exhibit; “GC Br.” for the General Counsel’s
brief; and “R. Br.” for the Respondent’s brief.
JD(SF)-28-16
3
On September 29, 2006, Respondent and the International Brotherhood of Teamsters,
Local 162 (Local 162) entered into a Memorandum of Agreement (2006 Agreement).5 At the
time when the 2006 Agreement was executed, Respondent recognized Local 162 as the exclusive
collective-bargaining representative of Respondent’s delivery drivers to be domiciled in the
Boise, Idaho geographical area (Boise yard).6 Per paragraph 9 of the 2006 Agreement, Local 162 5
and Respondent agreed that new delivery drivers hired at the Boise yard after September 30,
2011 would “not be part of the bargaining unit unless through the process of the National Labor
Relations Act, a new bargaining unit is created.”
On September 11, 2007, Respondent, Local 483, Local 162, and United Brotherhood of 10
Teamsters, Local 58 (Local 58) executed a 2007 Extension Agreement (2007 Agreement).7 Per
paragraph 3 of the 2007 Agreement, Respondent recognized Local 483 as the exclusive
collective-bargaining representative for the then organized domicile delivery drivers at the Boise
yard.
15
From March 1, 2008, to March 1, 2013, Respondent, Local 483, Local 58, Local 162,
United Brotherhood of Teamsters, Local 117 (Local 117), and United Brotherhood of Teamsters,
Local 690 (Local 690) entered into a collective-bargaining agreement (2008 CBA).8 Per the
2008 CBA, Respondent continued to recognize Local 483, Local 117, Local 690, Local 58 and
Local 162 as the exclusive collective-bargaining representatives of Respondent’s drivers and 20
warehousemen across various locations in Oregon, Washington, Utah and Idaho. Respondent
and the Union continue to enforce the terms of the 2006 Agreement per Article 28 under which
Respondent recognized the Union as the exclusive collective-bargaining representative for the
then (as of September 11, 2007) organized domicile delivery drivers at the Boise yard.
25
Local 117, Local 690, Local 58, Local 162, the Union, and Respondent entered into a
successor collective-bargaining agreement effective from March 1, 2013, to March 1, 2017
(2013 CBA). As of the effective date of the 2013 CBA, Respondent continued to recognize the
Union as the exclusive collective-bargaining representative of Respondent’s domicile delivery
drivers at the Boise yard. Through Article 28 of the 2013 CBA, the 2013 CBA became the entire 30
agreement between the parties and the 2006 Agreement was no longer in force or effect.
Respondent continued to recognize the Union as the exclusive collective-bargaining
representative for the domicile delivery drivers at the Boise yard who were organized as of
September 11, 2007, excluding any domicile drivers hired after September 30, 2011. Retired
Union Secretary-Treasurer Mark Briggs testified that he represented the Union during the 35
negotiations for the 2013 CBA, and unrepresented drivers in the Boise yard were not considered
during negotiations (Tr. 26).9 As of May 26, 2015, the bargaining unit represented by the Union

5 Local 162 has been a labor organization within the meaning of section 2(5) of the Act.
6 The Boise yard is part of Respondent’s Salt Lake City distribution center (Tr. 155).
7 Local 58 has been a labor organization within the meaning of Section 2(5) of the Act.
8 Local 117 and Local 690 have been labor organizations within the meaning of Section 2(5) of the
Act.
9 Respondent asserts in its brief that during negotiations for the 2013 CBA, the Union actually
negotiated wages and vacation leave for the unrepresented drivers in the Boise Yard (R. Br at 5). Article
8, Section 8.01, includes minimum wage scales for Local 483 drivers, both current and new hire (Jt. Exh.
5). However, Briggs, who signed the 2013 CBA on behalf of the Union, testified uncontested that the
parties did not negotiate terms and conditions of employment for the Boise yard drivers hired after
JD(SF)-28-16
4
at the Boise yard and recognized by Respondent, consisted of three domicile delivery drivers, all
of whom were hired by Respondent before September 30, 2011 (Tr. 160).

B. Respondent’s Operations
5
Respondent admits that the following individuals are supervisors within the meaning of
Section 2(11) of the Act and agents within the meaning of Section 2(13) of the Act: Bob Blyth
(Blyth), Vice President of Labor Relations; Brad Forney (Forney), Vice President of Operations;
Shawn Burkhammer (Burkhammer), Finance Supervisor; Daryk Butler (Butler), Manger of
Transportation; and Gary Andreson (Andreson), Area Supervisor.10
Of relevance, at the Boise yard, Respondent employs domicile delivery (also known as
route) drivers and relief delivery drivers (those who substituted for the delivery drivers)
(collectively, “drivers”) (Tr. 127). These drivers delivered Respondent’s products locally or
traveled among the States (Tr. 46–47, 50, 52, 96). The work performed, the manner in which the 15
work was performed, the trucks driven, and the uniforms worn did not differ between the union
and nonunion drivers (Tr. 50, 160). However, the union drivers delivered fewer products than
the nonunion drivers due to their routes (Tr. 50–52). The drivers bid on the routes every 6
months, and the order of bidding was based on the drivers’ seniority, which the union drivers
held greater seniority that the nonunion drivers (Tr. 84, 122). The routes set the work schedules 20
for the drivers.
Also, the wage rates and vacation and sick leave allotments differed between the union
and nonunion drivers. The nonunion drivers usually earned a pay increase every 3 months (Tr.
99, 128). Yearly, the nonunion drivers earned 2 weeks of vacation leave, 5 days of sick leave, 25
and 3 personal days (Tr. 100–101, 129). If not all vacation days were used, then Respondent
would replace the vacation days with unused sick leave days and then give the nonunion drivers
cash for those vacation days.
The following Boise yard drivers were hired by Respondent after September 30, 2011:30
Lucas Toomey (Toomey), hired on December 16, 2013, and continued to be employed by
Respondent as of the date of the hearing; Kenneth Mann (Mann), hired on January 27, 2014, and
continued to be employed by Respondent as of the date of the hearing; Rosendo Contreras
(Contreras), hired on February 4, 2014, and continued to be employed by Respondent as of the
date of the hearing; Daniel Koeppel (Koeppel), hired on November 9, 2014, and continued to be 35
employed by Respondent as of the date of the hearing; and Cody Eisenbrandt (Eisenbrandt),
hired on January 21 and ended employment on June 6 (Jt. Exh. 1). Andreson supervised all
drivers at the Boise yard (Tr. 45).
40

September 30, 2011. Blythe also admitted that the parties did not negotiate terms and conditions of
employment for nonbargaining unit employees (Tr. 177–178). The record contains nothing further
regarding the bargaining history of the 2013 CBA nor any evidence on what the parties intended
regarding the provisions Respondent references. Therefore, I reject Respondent’s assertion in its brief.
JD(SF)-28-16
5
C. Representation Petition and Election
On May 26, the Union filed a representation petition (Case 27–RC–152884) (Petition)
seeking to represent all of Respondent’s drivers at the Boise yard (Jt. Exh. 6). Prior to filing the
representation petition, Briggs sought voluntary recognition from Respondent (Tr. 27). Briggs 5
spoke to Butler on May 20 with a set deadline for a response but did not receive a response, so
he filed the representation petition. On June 2, the Union and Respondent entered into a
stipulated election agreement (Election Agreement) with an election to take place on June 16.
The Election Agreement, which was a self-determination or Armour-Globe election,10
described the following unit as eligible to vote: all full-time and regular part-time domicile
delivery drivers employed by the Employer at its premises located at 4719 Market St., Building
2, Boise, Idaho (Jt. Exh. 8).10 Per the Election Agreement, and an eligibility agreement, the only
employees eligible to vote in the election were Toomey, Koeppl, Contreras, Mann and
Eisenbrandt, all of whom were hired by Respondent to work at the Boise yard after September 15
30, 2011 (Jt. Exh. 1, 6, and 8). The drivers hired before September 30, 2011, were not eligible to
vote since they were already represented by the Union.
The question on the ballot for all eligible voters was:
20
“Do you wish to be represented for purposes of collective bargaining by
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 483?
The choice on the ballot will be “Yes” or “No.”
25
If the majority of valid ballots are cast for INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, LOCAL 483, they will be taken to have indicated the
employees’ desire to be included in the multi-state delivery driver bargaining unit
currently represented by the INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, LOCAL 483 and other Teamsters Locals. 30
If a majority of valid ballots are not cast for representation, they will be taken to
have indicated the employees’ desire to remain unrepresented
(Jt. Exh. 8 (emphasis in original)).35
The election did not take place on June 16, as scheduled, and instead took place on June
23 (Jt. Exh. 1, 9, and 10). The tally of ballots occurred on the date of the election with the
majority of votes cast for the Union; no party filed objections (Jt. Exh. 1 and 11).
40

10 Blythe testified that the election in this matter was the first Armour-Globe stipulated election
agreement in which he participated (Tr. 159–160, 170). A self-determination election may be conducted
when a union seeks to add a fringe or residual group of previously unrepresented employees to an existing
unit. See NLRB Casehandling Manual (Part Two) Sec. 11091.2(a). The Armour-Globe election
procedure began in Globe Machine & Stamping Co., 3 NLRB 294 (1937), and was expanded in Armour
and Co., 40 NLRB 1333 (1942).
JD(SF)-28-16
6
On July 2, the Region 27 Acting Regional Director issued a certification of
representative, and on September 16, a corrected certification of representative was issued (Jt.
Exh. 12 and 13). The corrected certification of representative stated that a majority of ballots
was cast for the Union, and that the Union is the exclusive collective-bargaining representative
of the appropriate unit of all full-time and regular part-time domicile delivery drivers employed 5
by the Employer at its premises located at 4719 Market St., Building 2, Boise, Idaho, which was
now a part of the existing multistate delivery driver bargaining unit currently represented by the
Union and other Teamsters Locals (Jt. Exh. 13).
Attached to the certification was a notice of bargaining obligation. The notice stated, 10
“Except in unusual circumstances, unless the results of the election are subsequently set aside in
a post-election proceeding, the employer’s legal obligation to refrain from unilaterally changing
bargaining employees’ terms and conditions of employment begins on the date of the election”
(Jt. Exh. 12, 13).
15
D. Pre-election Meetings
Beginning in either mid to late-May, the nonunion drivers began attending several
mandatory, off-site group and individual meetings with Respondent regarding the union
representation petition (Tr. 60, 102). Drivers Toomey, Mann and Contreras attended while 20
Andreson, Forney and Butler attended on behalf of Respondent (Tr. 60). Although the drivers
interacted with Andreson often, since he was their immediate supervisor, the drivers only met
Butler once at a safety meeting, and Forney twice, once at orientation and once at a safety
meeting (Tr. 63–64).
25
At the first meeting, Forney took the lead, and began by telling the drivers that he heard a
rumor that they were interested in unionizing and wanted to know their concerns and what
Respondent did “wrong” (Tr. 60–61, 104). Each of the nonunion drivers spoke. Toomey stated
that he did not believe they were being treated fairly compared to the union drivers (Tr. 61).
Toomey further explained that the union drivers seemed to have greater benefits, shorter routes, 30
and superseded the nonunion drivers for scheduling their vacation leave (Tr. 105). Mann asked
questions regarding route bidding (Tr. 104–105). Contreras also spoke about his work schedule
(Tr. 105).
Forney responded that he understood their concerns but that the drivers, if they voted for 35
the Union, would not be under the same contract.11 He continued that it was his obligation to
Respondent to make sure the drivers were not under the same contract, they would be under a
separate contract, and they would not make the same money, they might even make potentially
less money because they would be based on the Salt Lake City pay rather than Oregon’s pay
depending on how negotiations went (Tr. 61). Forney also told the drivers that Respondent 40
would not be able to take them out to lunch if they elected to be represented by the Union (Tr.
106).
Contreras then complained that the nonunion drivers were not able to attend
Respondent’s sponsored annual truck rodeo and picnic because the union drivers would not 45

11 Blyth testified that his office provided this information to Forney (Tr. 181).
JD(SF)-28-16
7
cover their shifts (Tr. 62). Forney responded that in the future Respondent will address this issue
by potentially sending drivers from Salt Lake City to cover the shifts. Forney also offered the
drivers hoody sweatshirts that were given to the attendees of the rodeo (Tr. 62). Forney said he
appreciated receiving the information, and asked the drivers to give him 6 months before voting
so he could address these issues (Tr. 62). 5
Forney also asked if they needed new uniforms. Toomey requested three polo shirts
which he received (Tr. 63, 65). Mann and Contreras also asked for polo shirts which they
received (Tr. 105, 108). Obtaining new polo shirts was rare (Tr. 64–65, 109–110). Mann,
Toomey and Contreras also received a hoody sweatshirt from the 2015 rodeo they missed (Tr. 10
66, 106, 108). The meeting ended.
One to two weeks later, Mann, Toomey and Contreras attended another group meeting at
a Boise hotel with Forney, Butler, Andreson and two to three other representatives from
Respondent including Doreen Long, Director of Employee Relations (Tr. 68, 110–111). Forney 15
again began the meeting by asking if the drivers had any questions, concerns or need for
clarification (Tr. 69). Forney stated that he knew the drivers wanted “to go Union” and wanted
to know their concerns because seeking union representation was “a direct reflection on me” (Tr.
70). Forney said that the management team had failed them, and what can they do in the future
so that “doesn’t happen again” (Tr. 70). Toomey could not recall if he spoke, but the drivers 20
again voiced their opinions. Forney stated that all the issues raised by the drivers were “fixable”
(Tr. 70). He also stated, “However you guys decide to vote or whatever, you know, at least these
are something that we know that are direct issues for employees and these are things that, you
know, we can work together to fix” (Tr. 70). By this point in the meeting, Forney reversed
course from the first meeting and mentioned that the drivers would be part of the 2013 CBA (Tr. 25
71).
Thereafter, Long presented to the drivers the differences between the benefits of the 2013
CBA and remaining nonunion such as the pension and medical plans (Tr. 71, 111). Long
mentioned that the drivers’ pay would be different, potentially less, if they joined the Union, and 30
that they could speak with Forney who had the pay differences to show them (Tr. 71, 112). At
the end of the meeting, the drivers went as a group to review the pay difference (Tr. 72, 112).
Forney spoke to each driver privately, showing each a small notebook with numbers of hours the
drivers worked and the corresponding pay grades (Tr. 73, 91, 112). Forney said to Toomey,
“This is how many hours you’ve currently worked. This is what your pay will be if you go 35
Union” (Tr. 72–73).12 Forney also said, “It’s something to think about” (Tr. 73). These new
wage rates were lower than what the drivers currently made.
Sometime after the second group meeting, an individual meeting occurred between
Forney and Toomey (Tr. 74). Forney met Toomey on his route one day (Tr. 74). Forney sat in 40
the truck with Toomey while Toomey ate his lunch. Forney told Toomey, “You know, there’s a
lot of big stuff coming up. You know, I just wanted to make sure that you are clear on
everything. If any questions, let me clarify some things. Let me make sure that, you know,
what’s actually happening and what’s going on” (Tr. 75). Toomey told Forney that he had no

12 Based on subsequent testimony by Koeppel, it appears Forney based his calculation on Article 8 of
the 2013 CBA (Tr. 134–135).
JD(SF)-28-16
8
questions or concerns. Forney also had a copy of the 2013 CBA if Toomey had any questions
but he did not have any interest in reviewing it. The meeting concluded shortly thereafter.
Approximately 1 week prior to the initial scheduled election date, Forney held one final
meeting with the drivers (Tr. 76–77, 113). Forney, Andreson and two human resources 5
representatives including Long attended the meeting on behalf of Respondent. Toomey,
Contreras, Mann and Koeppel attended the meeting as well (Tr. 130). Forney again asked the
drivers if they had any questions and that it was “kind of crunch time” (Tr. 78). None of the
drivers had questions. Long showed a slideshow presentation with alleged materials from other
Teamsters’ strikes against Respondent. These slides include pictures of dead rats, cockroaches 10
and Teamsters’ flyers from strikes urging customers not to purchase from a company who
conducted business with Respondent (Tr. 79, 137). Long also showed a 4 minute video
depicting various strikes and what individuals had done during these strikes such as cursing,
screaming and acting violent (Tr. 79, 132). Forney spoke about how the Teamsters played
“dirty” in these strikes (Tr. 116–117). The drivers were also told what would occur to their 15
wages during a strike, and the number of losses by the Union when seeking settlements (Tr.
132). Then Forney concluded the meeting.13
Because Koeppel attended only the last meeting, the following day, Forney, Butler and
Andreson met him at a fast food restaurant (Tr. 133). Forney spoke with Koeppel while Butler 20
and Andreson performed Koeppel’s job duties. Forney summarized the prior meetings for
Koeppel including presenting Koeppel with how his hourly wage rate would be reduced if the
Union were elected. Forney showed Koeppel Article 8, Section 8.03 from the 2013 CBA which
indicates rates of pay depending on hours worked (Tr. 134–135). Koeppel told Forney that a
reduction in his wages would be financially difficult for him, and Forney told Koeppel that he25
did not want to have to reduce his wages. Forney also told Koeppel that his vacation allotment
would also be reduced if the Union were elected, and that the vacation he recently took would be
the only one he would receive that year (Tr. 134).
Finally, on May 26, Forney sent a letter to Eisenbrandt, addressing alleged concerns and 30
frustrations he shared with Forney (Jt. Exh. 7). In addressing the Union, Forney wrote:
I would like you to ask that you please stay focused on our customers and help us to
continue to grow what has become a great market. You may be hearing more about what
the Teamsters are and the promises they make. I want to be clear on some facts, as you 35
may not receive them from all parties.

13 The testimony of Toomey, Mann and Koeppel regarding the meetings they attended was consistent
and credible. Furthermore, their testimony was unrefutted by Respondent, who did not call Forney or any
of its other meeting attendees to testify. The General Counsel requests that I draw an adverse inference
based on Respondent’s failure to call Forney to testify (GC Br. at 16, footnote 19). At the time of the
hearing, Forney continued to work for Respondent, and Respondent provided no explanation as to why
Forney did not testify. Therefore, I draw an adverse inference that Forney’s testimony would have
corroborated Toomey, Mann and Koeppel’s version of the meetings he conducted. Roosevelt Memorial
Medical Center, 348 NLRB 1016, 1022 (2006) (an ALJ may draw an adverse inference from a party’s
failure to call a witness who may reasonably be assumed to be favorably disposed to a party, and who
could reasonably be expected to corroborate its version of events, particularly when the witness is the
party’s agent).
JD(SF)-28-16
9
 The Teamsters CANNOT tell a company how to run its business (set standards,
routing, cases per truck, hours worked etc…)
 Over 80% of US Foods employees are not represented by unions, and they receive
great wages and benefits, without paying someone else to speak for them or face 5
the risk of being called out on strike.
 There is no guarantee that you will have the same wages/benefits that your
represented co-workers in Boise currently have
 Being non-union gives us the flexibility to work directly with you to take care of
issues that come up; both yours and the customers10
We have a lot going for us in the Salt Lake Division. We have been extremely successful
at growing the business by working directly with each other to overcome business
challenges. Working through a third party would compromise the speed and
effectiveness of addressing those issues.15
I personally believe that the best way for our division to continue to grow and succeed is
to remain “union free” so that we can work as a team and move quickly to resolve
challenges.
20
E. Respondent Applies the 2013 CBA to the Drivers who Voted in the Board Election
On July 16, Blyth called Briggs, leaving a voicemail stating that they needed to get
together to find a date to transition the drivers to the Union’s health and welfare plan (Tr. 29).14
That same day, Blyth sent a letter to Briggs, as a follow-up to Blyth’s voicemail (Jt. Exh. 14). 25
The letter stated, “This letter is a follow-up to my voice mail to you regarding transitioning the
four (4) US Foods drivers into the existing CBA between the parties. We need to establish an
effective date for the transition in an effort to avoid any gap in benefit coverage for the
employees.” Blyth did not specifically mention in his voicemail or letter changing the wages and
vacation and sick leave allotments for the drivers (Tr. 29–30).30
Briggs spoke to Blyth between July 24 and July 26. Neither Briggs nor Blyth could
recall specific details of the call but testified that they agreed to transition the drivers on August
1 to the Union’s health and welfare plan to avoid a break in health and welfare coverage (Tr. 31,
165–166). They did not discuss transitioning the drivers to other terms and conditions of the35
2013 CBA (Tr. 31–32).
On July 28, Blyth sent a letter to Briggs again as a follow-up to a voicemail he left the
same day. The letter stated, “This letter is a follow-up to my voice mail to you regarding the
effective date of the transition of the four (4) US Foods drivers into the existing CBA between 40
the parties. Pay and benefit changes will be effective on 08/01/15” (Jt. Exh. 15).

14 Per Article 15 (Health and Welfare-Dental-Vision), Section 1 of the 2013 CBA, Respondent is
required to make contributions to the Oregon Teamsters Employers Trust on behalf of the bargaining unit
drivers at the Boise yard (Jt. Exh. 5). Per Article 16 (Pension Plan) of the 2013 CBA, Respondent is
required to make contributions based on each hour worked to the Western Conference of Teamsters
Pension Trust Fund on behalf of the bargaining unit drivers at the Boise yard.
JD(SF)-28-16
10
Briggs testified that this letter was the first time Blyth mentioned pay and benefit changes
(Tr. 32). Briggs then called Blyth on July 29 leaving him a voicemail that the Union “expected
the employees to be red-circled in on their wages that they were at now” (Tr. 33). Briggs defined
“red-circle” as keeping the wages as that have currently until the drivers reached the pay rates in
the 2013 CBA before getting their next wage increase (Tr. 33). Briggs, who had resigned by that 5
time as the Union Secretary Treasurer, called his successor Phil Haueter (Haueter) to inform him
of his conversation with Blyth (Tr. 34). Briggs also recommended that Haueter write a letter to
Blyth explaining the Union’s position on the “red-circle” (Tr. 34).
On July 30, Haueter sent a follow-up letter to Blyth. Haueter wrote,10
Per the phone message you left it appears that US Foods may be attempting to
unilaterally implement a change in wage for the four new bargaining unit
employees. The Union is aware that Mark Briggs spoke with you about red
circling the wage-rate of these employees until they progress past their current 15
wage-rate.
The current wage for these employees cannot be changed without further
negotiations. We are concerned that US Foods may be making these wage
changes in retaliation against employees who joined the Union.20
Please be advised, there is no negotiated wage-rate change for these employees.
Should US Foods unilaterally implement this change prior to a negotiated
agreement; the appropriate NLRB charges will be filed.
25
(Jt. Exh. 16).
On July 31, Blyth responded,
This letter is in response to the above [letter dated 7/30/15]. Please be advised 30
that I did not have a conversation with Mr. Briggs regarding red circling the four
(4) employees that will be covered by the CBA.15
The Company maintains that the change in wage rate is not a unilateral change or
an issue subject to “further negotiations.” Rather the Company is simply applying 35
the existing CBA (including the hourly wage rate progression set forth therein) to
these four (4) employees per the election agreement. As a reminder, the election
agreement stated:
“If a majority of valid ballots are cast for 40
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

15 Blyth denied speaking to Briggs about “red-circling” the wage rates for the drivers but did not
clarify if he received a voicemail from Briggs to the same effect (Tr. 168). Regardless of whether Blyth
received Briggs’ voicemail or spoke with Briggs about “red circling” the wage rates, the record is clear
that no later than July 30, the Union informed Respondent that they sought to negotiate the wage rates for
the four drivers.
JD(SF)-28-16
11
LOCAL 483, they will be taken to have indicated the
employees’ desire to be included in the multi-state delivery
driver bargaining unit currently represented by the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
LOCAL 483 and other Teamsters Locals. If a majority of 5
valid ballots are not cast for representation, they will be
taken to have indicated the employees’ desire to remain
unrepresented.
Given this language, as well as the certification of the election results showing 10
that the employees wished to be included in the existing bargaining unit, we are
simply respecting the employees’ wishes and complying with what is required of
us under CBA and the National Labor Relations Act.
(Jt. Exh. 17).16 Blyth testified that he made the decision to change the pay and benefits of the 15
four Boise yard drivers to be consistent with the terms of the 2013 CBA because he viewed the
drivers electing to be represented by the Union as also now being a part of the 2013 CBA (Tr.
168–169, 175).
On August 7, Burkhammer sent an email to the Union informing them that Respondent 20
applied the new wage rates for the newly represented drivers (Jt. Exh. 18). Overall, the drivers’
wage rates were reduced.17 Respondent based these rates on the “break in rates” in Article 8,
Section 8.03 of the 2013 CBA. These new wage rates were as follows:
Koeppel $14.70/hour25
Toomey $19.60/hour
Contreras $17.15/hour
Mann $17.15/hour
After the election, the drivers did not receive their every-3-month wage increases (Tr. 30
137). In addition, Mann and Koeppel encountered trouble using their vacation days (Tr. 118,
138). Eventually, Mann took his vacation in December. Mann’s sick days were not replaced
with his vacation leave as would have been if he remained unrepresented (Tr. 120). Andreson
denied Koeppel’s request to use his remaining 1 week of vacation, and when Koeppel used 1 day
of sick leave in November 2015, Andreson permitted Koeppel to take the day off, unpaid, even 35
though he had sick days remaining (Tr. 138).
40

16 Blythe testified to the same at the hearing (Tr. 162).
17 The record shows that after his first year of employment, Toomey earned $21.89 per hour which
was reduced in August to $19.60 per hour (Tr. 57). Mann testified he earned $21.89 per hour as his top
pay which was reduced in August to $17.15 per hour (Tr. 100). Koeppel’s starting salary was $19.00 per
hour with raises of $0.72 per hour every quarter (Tr. 128). Koeppel’s salary was reduced in August to
$14.70 per hour.
JD(SF)-28-16
12
III. DISCUSSION AND ANALYSIS
A. Respondent Violated Section 8(a)(5) and (1) of the Act when it Unilaterally Changed
the Wage Rates, and Vacation and Sick Leave Days for Drivers Who had Voted in
the Board Election on June 235
The General Counsel alleges that Respondent violated the Act by making unilateral
changes to the newly represented drivers’ terms and conditions of employment (GC Br. at 18–
23). Due to the circumstances of the self-determination election, the General Counsel argues that
rather than automatically applying the 2013 CBA to the newly represented drivers, Respondent 10
should have bargained with the Union. The General Counsel cites to Federal-Mogul Corp., 209
NLRB 343 (1974) as the seminal case.
It is undisputed that any Boise yard drivers hired after September 30, 2011, were
excluded from the bargaining unit represented by the Union (Jt. Exh. 1). Furthermore, 15
Respondent does not dispute that on June 2 it entered into a stipulated election agreement with
the Union for a self-determination election for these drivers. Respondent also does not dispute
that on August 1 it changed the wage rates, and vacation and sick leave days for the newly
represented drivers. Respondent justifies its actions by arguing that by voting to be included in
the existing unit of drivers at the Boise yard, those drivers then became covered by the 2013 20
CBA, and Respondent was not obligated to bargain with the Union over their terms and
conditions of employment (R. Br. at 18–20). Respondent contends that the facts presented here
are distinguishable from the facts in Federal-Mogul Corp. (R. Br. at 18).
In a self-determination election (also known as an Armour-Globe election), when 25
employees are added to a bargaining unit during the terms of a contract covering a larger unit,
“residual” or “fringe group” employees are not automatically swept under the terms of the
agreement covering the existing unit. Wells Fargo Armored Service Corp., 300 NLRB 1104
(1990) (newly added employees not automatically covered by existing contract because to do so
would be contrary to H.K. Porter Co. v. NLRB, 397 U.S. 99, 102 (1970), where Supreme Court 30
held that the Board may require parties to bargain but may not compel them to agree to any
certain provision); Bay Medical Center, 239 NLRB 731, 732 (1978) (employer violated the Act
when it refused to bargain regarding employees who voted in self-determination election to be
included in existing unit); Federal-Mogul Corp, supra (employer must bargain regarding
appropriate contractual terms to be applied to new addition to previous unit). A union and an 35
employer must bargain over the terms and conditions under which the fringe group will work
until the contract in the larger unit expires. Federal-Mogul Corp., supra at 344.
In Federal-Mogul Corp., the employees, who were maintenance workers and who had
been specifically excluded from the bargaining unit, voted in a self-determination election to be 40
represented by a union. The notice of election stated that by voting yes, these maintenance
employees were indicating a desire to be included in the existing unit represented by the union.
Federal-Mogul Corp., supra at 348. The employer unilaterally applied the terms of the existing
contract to the newly added group, and the union protested that it had the right to bargain before
the employer made the changes. In those circumstances, the Board held that the employer is not 45
entitled to apply the existing contract to the new group of employees added to the unit without
offering to bargain.
JD(SF)-28-16
13
Here, as in Federal-Mogul Corp., when Respondent and the Union negotiated the terms
of the 2013 CBA, the Boise yard drivers hired after September 30, 2011, were specifically
excluded from the bargaining unit and negotiations. A party does not escape its obligation to
bargain simply by assuming that the newly added employees to a bargaining unit are
automatically included in the existing contract, which when negotiated, excluded them. Both 5
Briggs, who negotiated the 2013 CBA, and Blyth, who leads labor-management relations at
Respondent, agreed that negotiations for the 2013 CBA specifically excluded the Boise yard
drivers hired after September 30, 2011. Thus, no bargaining occurred for those excluded
employees. Although the Boise yard drivers hired after September 30, 2011, shared similar work
assignments and work shifts as the drivers included in the 2013 CBA, they had their own terms 10
and conditions of employment which were separate and distinct from the terms and conditions in
the 2013 CBA. For example, the Boise yard drivers hired after September 30, 2011, had
different vacation and sick leave allotments and received wage increases every 3 months rather
than what is set forth in the 2013 CBA. Since the interests of the Boise yard drivers hired after
September 30, 2011, were not considered at the time the 2013 CBA was negotiated, they are not 15
bound by its terms.
Improperly, Respondent unilaterally implemented the terms and conditions of the 2013
CBA to the newly represented drivers. However, the parties only agreed to the effective date of
transitioning the newly represented drivers to the Union’s welfare and pension plan. Four days 20
before implementation, Respondent noted that it would also change the pay and benefit coverage
for these drivers. Upon notice, the Union immediately protested, stating that any changes to the
wage rates must be negotiated. Despite the Unions’ disagreement with Respondent’s intentions,
Respondent not only transitioned the drivers to the Union’s pension and welfare fund on August
1, but also changed the drivers’ wage rates and vacation and sick leave allotments. Because 25
Respondent had an obligation to give the Union notice and an opportunity to bargain over the
wage rates, and vacation and sick leave allotments, before implementation, Respondent violated
Section 8(a)(5) and (1) of the Act when it unilaterally applied the terms and conditions of the
2013 CBA to the newly represented drivers.
30
In its brief, Respondent argues that the newly added drivers to the bargaining unit are
covered by the 2013 CBA because it “includes terms specifically negotiated by Local 483 to
cover Boise-based drivers” (R. Br. at 20-21). I reject Respondent’s argument. Blyth admitted
that Boise yard drivers hired after September 30, 2011, were specifically excluded from the 2013
CBA negotiations. Briggs, who represented the Union during the 2013 CBA negotiations, also 35
testified that the parties did not negotiate terms and conditions of employment for non-
bargaining unit employees. Since the parties admitted that these drivers were excluded from the
contract, no bargaining could have consciously been made for them. Since these drivers’
interests were not considered at the time the 2013 CBA was negotiated, they are not bound by its
terms. 40
Furthermore, in contrast to the circumstances presented here, Respondent argues that
Federal-Mogul Corp. is distinguishable because in that decision “a new classification of
employees (setup men) previously excluded from the bargaining unit voted to be added to an
existing bargaining unit” (R. Br. at 20). Respondent argues that the terms and conditions of 45
employment for the Boise yard drivers had been bargained since Boise yard drivers hired prior to
September 30, 2011, were covered by the 2013 CBA. In other words, Respondent argues that
JD(SF)-28-16
14
because the job classification of the Boise yard drivers remained the same as those already
included in the existing unit, Respondent could simply apply the 2013 CBA to the newly added
drivers. Again, I reject this argument. It is of no consequence that the newly added drivers were
in the same job classification as the drivers in the bargaining unit. Consistently, both Blyth and
Briggs testified that the Boise yard drivers hired after September 30, 2011, were specifically 5
excluded from the negotiations for the 2013 CBA. Rather, Respondent set the terms and
conditions of employment for the Boise yard drivers hired after September 30, 2011.
Respondent also argues that because the drivers all share the same type of work, have the
same supervisor, and perform the work similarly, the newly represented drivers should not have 10
separate bargaining from those Boise yard drivers previously represented by the Union. By
bargaining separately, Respondent claims that bargaining instability would occur (R. Br. at 21–
22). I disagree. Per Board law, bargaining would be limited to interim bargaining until the time
comes to negotiate a new contract. In an Armour-Globe self-determination election, the Board
stated in UMass Memorial Medical Center, 349 NLRB 369, 371 (2007), “We find that Federal-15
Mogul, supra, properly balances the concerns of preventing unilateral application of contract
terms to a group of employees who were not represented when the collective bargaining
agreement was negotiated, on the one hand, and allowing for employee free choice, on the
other.” Furthermore, bargaining, in situations such as these, would be limited to interim
bargaining for these newly represented drivers. Federal-Mogul Corp., supra at 344–345. 20
Finally, Respondent argues that accretion principles should be applied under the
circumstances presented herein (R. Br. at 22–29).18 Accretion is the addition of a group of
employees to an already existing unit where the additional employees share an overwhelming
community of interest with the existing unit employees and have no separate identity; the group 25
is thus included in the existing unit by operation of law without the holding of an election. In
contrast, in the case of a self-determination election as occurred in this instance, a group of
unrepresented employees in a partially organized facility, via a secret ballot election, chose to be
represented by a union rather than remain unrepresented.
30
The doctrine of accretion is applied restrictively because it deprives employees of their
opportunity to express their desires regarding membership in the existing unit. Towne Ford

18 In part, Respondent relies upon an unrelated General Counsel Advice Memorandum, Robert Wood
Johnson University Hospital, Case 22–CA–27693 (May 29, 2007) (R. Br. at 22–26). An Advice
Memorandum does not constitute Board law and has no binding effect on me. See Glendale Associates,
Ltd., 335 NLRB 27, 33–34 (2001). Thus, I decline to give it any significant weight. Moreover, the
factual scenario presented in the Advice Memorandum differs significantly from the present situation. In
Robert Wood Johnson University Hospital, a group of nurses voted in a self-determination election to join
a previously existing unit of nurses. Simultaneously, the union and employer had been negotiating a
successor labor agreement. Before contract negotiations completed, the certification was issued, adding
these nurses to the existing unit. The Advice Memorandum recommended that Federal-Mogul Corp.,
would not apply because the parties had a full opportunity to bargain over these newly added employees
before the labor agreement was finalized. In such a situation, the Advice Memorandum recommended
that accretion principles as described in Baltimore Sun Co., 335 NLRB 163 (2001) should apply. Here,
the election for the drivers (and subsequent certification) occurred during the terms of the 2013 CBA,
with no new agreement being negotiated. Thus, even assuming this Advice Memorandum had some
binding authority upon me, I decline to follow it since the situations are vastly different.
JD(SF)-28-16
15
Sales, 270 NLRB 311 (1984), enfd., 759 F.2d 1477 (9th Cir. 1985). The Boise yard drivers hired
after September 30, 2011, cannot have accreted to the bargaining unit because they were
specifically excluded from the bargaining unit. Furthermore, applying accretion principles to the
Boise yard drivers hired after September 30, 2011, would disregard the parties’ stipulated
election agreement. If Respondent believed that because the Boise yard drivers hired after 5
September 30, 2011, shared a community of interest such that they should be automatically
included in the bargaining unit under the accretion doctrine, Respondent should have made this
argument before entering into a stipulated election agreement with the Union.19 By entering into
the election agreement, Respondent waived its argument regarding accretion. Moreover, in
NLRB v. Mississippi Power & Light Co., 769 F.2d 276, 279–280 (5th Cir. 1985), the Court noted 10
that although employees added to an existing bargaining unit through a “fringe group election”
are not covered by an existing bargaining agreement under Federal-Mogul Corp., and its
progeny, employees added to a bargaining unit “by unit clarification” are covered by an existing
agreement. Accordingly, even if Respondent did not waive its argument regarding accretion, the
principles of accretion do not apply. 15
In sum, Respondent violated Section 8(a)(5) and (1) when it unilaterally changed
working conditions for the newly represented drivers at the Boise yard by applying the 2013
CBA to their terms and conditions of employment.
20
B. Respondent violated Section 8(a)(1) of the Act when Forney threatened employees
that their wages and vacation days would be reduced if they selected the Union as
their bargaining representative
The General Counsel alleges that in June 2015, Forney threatened employees with 25
reduced wages and loss of vacation time if they selected the Union as their bargaining
representative (R. Br. at 16–18). Respondent disagrees, arguing that Forney only explained to
the employees that if the Union were chosen by the drivers he did not want to change their wages
and vacation days but that bargaining with the Union may result in such a change (R. Br. at 29–
32). 30
In analyzing a Section 8(a)(1) allegation, “[t]he test is whether the employer engaged in
conduct which, it may reasonably said, tends to interfere with the free exercise of employee
rights under the Act.” American Freightways Co., 124 NLRB 146, 147 (1959). Section 8(a)(1)
violations do not turn on the employer’s motive or on whether the coercion succeeded or failed. 35
In NLRB v. Gissel Packing Co., Inc., 395 U.S. 575, 618 (1969), the Supreme Court stated, “[A]n
employer’s prediction about the consequences of unionization] must be carefully phrased on the
basis of objective fact to convey an employer’s belief as to demonstrably probable consequences
beyond his control . . . in case of unionization.” The Court cautioned that if there is any
implication that an employer may or may not take action solely on his own initiative for reasons 40
unrelated to economic necessities and known only to him, the statement loses protection of the

19 Regarding community of interest, the General Counsel appears to agree that the newly added
drivers share community of interest with the existing covered drivers in the Boise yard (GC Br. at 6).
Furthermore, the sharing of a community of interest is required for an Armour-Globe election. See
UMass Memorial Medical Center, 349 NLRB 369, 369 (1007) (citing NLRB v. Raytheon Corp., 918 F.2d
249, 251 (1st Cir. 1990)). However, certain terms and conditions of these two groups of employees
differed considerably as discussed previously.
JD(SF)-28-16
16
First Amendment. Rather, “the issue is whether objectively . . . remarks reasonably tended to
interfere with the employee’s right to engage in [a] protected act.” Southdown Care Center, 308
NLRB 225, 227 (1992); see also Schaumburg Hyundai, Inc., 318 NLRB 449, 450 (1995).
Finally, the burden of proof is on the employer to demonstrate its prediction is based on
objective fact. Schaumburg Hyundai, Inc., supra. 5
Regarding wages, Forney along with other representatives from Respondent met with the
unrepresented drivers in a series of off-site mandatory meetings to discuss the Union. Forney
informed the drivers at the first mandatory meeting in mid- to late-May that if they voted to
unionize, they would not be under the same contract as the other drivers. Furthermore, he told 10
them they would make less money depending on how negotiations went.
At the second meeting, Forney clarified that the drivers would be included in the 2013
CBA. Long told the drivers that their pay would be different, potentially less, if they joined the
Union, and that Forney had the pay differences to show the drivers. Toomey and Mann testified 15
that Forney explained to each driver separately what his salary would be based on the number of
hours they each worked and the corresponding pay grades if they voted for the Union. These
wages were lower.
Furthermore, when Koeppel met with Forney individually, Forney showed him Article 8, 20
Section 8.03 of the 2013 CBA which indicates rates of pay depending on hours worked. Forney
explained to Koeppel that his wages would be lower if the Union represented the drivers. With
regard to vacation days, Forney similarly informed Koeppel that his vacation allotment would be
reduced if the Union became the drivers’ representative, and that his recent vacation would be
the only vacation he received that year. 25
Forney’s statements should not be construed in isolation but must be viewed in context of
the events taking place. Clearly in May to early June, Respondent appears to have been unclear
on whether the self-determination election would result in the drivers, if they elected the Union
as their representative, being covered by the 2013 CBA or whether a new labor agreement would 30
be negotiated. Forney’s statements reflected such confusion. Ultimately, Respondent unlawfully
failed to bargain with the Union as obligated. Furthermore, Forney made these statements during
a series of meetings he held with the unrepresented drivers to discuss unionization. Although not
pled as independent violations, these meetings sought to solicit concerns from the unrepresented
drivers so Respondent could try to address these issues before the election could occur. At the 35
first meeting, Respondent wanted to know what they did “wrong,” and also promised to provide
sweatshirts from the Respondent’s annual sponsored truck rodeo since the unrepresented drivers
could not attend. Forney also sent the unrepresented drivers new polo shirts, which were
typically only provided once to the drivers, at the start of their employment with Respondent. At
the second meeting, Forney told the drivers that their issues were “fixable.” At an individual 40
meeting, Forney attempted to show Toomey the 2013 CBA if he had any questions. At an
individual meeting with Koeppel, Forney also showed him his reduced wages under the 2013
CBA as well as explained that he would receive no more vacation time that year. Moreover, at
the last mandatory off-site group meeting, Long showed the drivers a slideshow and a short
video clip which depicted strikes by the Teamsters at Respondent’s other facilities. Forney’s 45
statements regarding reductions in wages and vacation days must be viewed with these facts in
mind.
JD(SF)-28-16
17
I find that Forney’s statements regarding reductions in wages and vacation days are
threats violating Section 8(a)(1) of the Act. The Board decision in Schaumburg Hyundai, Inc., is
instructive. In Schaumburg Hyundai, Inc., during a union organizing campaign, the employer-
owner held a meeting with his employees to discuss their problems at work. During this
meeting, the employer-owner waived a standard union contract used in similar shops, and 5
informed them that some of the employees would essentially receive reduced wages. The Board
held that the employer-owner’s action of informing the employees what changes would occur as
a result of implementation of a standard union contract violated the Act. This action of waving
the union contract in front of the employees did not constitute objective evidence to support the
employer-owner’s prediction that the employees would suffer adverse consequences if they 10
voted to be represented by the union. Furthermore, the Board stated: “[E]ven assuming the
Union’s standard collective-bargaining agreement provided for wages and working conditions as
[the employer-owner] had predicted, this does not mean that the bargaining unit employees
would automatically covered by a such a collective-bargaining agreement following
negotiations.” Schaumburg Hyundai, Inc., supra at 450. 15
Likewise, Respondent violated Section 8(a)(1) of the Act when Forney threatened
employees with wage and vacation day reductions. Although Forney received conflicting advice
as to whether the 2013 CBA would apply to employees, Forney’s reliance on the 2013 CBA does
not constitute objective evidence.20 Forney assumed that the 2013 CBA would apply to the 20
drivers, but the conflicting advice given to Forney, alone, should have informed him that the
drivers may not be automatically covered by this agreement. Forney relied upon an unproven
premise, and failed to take the collective-bargaining process into account. Furthermore, the
suggestion by Forney that the drivers would be bound by the terms of the 2013 CBA ignored the
reality that Respondent partially controlled which position it took regarding the drivers’ terms 25
and conditions of employment if they voted to be included in the existing bargaining unit.
Forney consistently told the drivers what their pay would be under the 2013 CBA without any
qualifiers. Forney also informed Koeppel that his vacation leave would be reduced if he voted
for the Union. Thus, Respondent’s statements regarding wage reductions and loss of vacation
time constituted threats that are violative of Section 8(a)(1) of the Act. 30
C. Respondent violated Section 8(a)(3) and (1) of the Act when on August 1 it reduced
the wage rates and vacation and sick leave balances of bargaining unit employees
who voted in the Board election held on June 23
35
The General Counsel also argues that Respondent unilaterally changed the newly
represented drivers’ terms and conditions of employment because they engaged in protected
concerted activity (GC Br. at 23–27). Respondent argues that the General Counsel cannot prove
that Respondent’s actions were motivated by animus (R. Br. at 32–34).

20 Respondent argues that misstatements by an employer do not violate the Act when not coupled with
affirmative action that the employer would take on his own accord in response to protected activity (R.
Br. at 30–31). Respondent relies upon Laverdiere’s Enters., 297 NLRB 826, 826 (1990) and New
Process Co., 290 NLRB 704, 707 (1988). Those cases are distinguishable from the situation here because
the misstatements in the cited cases were not coercive or threatening, unlike Forney’s misstatements in
this case. Even though Forney incorrectly told the drivers that the 2013 CBA would apply to them, his
misstatements of the bargaining process impliedly threatened employees that their wages and vacation
days would be reduced if they voted in favor of union representation.
JD(SF)-28-16
18
Under the Board’s Wright Line decision, in cases alleging discrimination in violations of
Section 8(a)(3) and (1), where motivation is at issue, the General Counsel bears the initial burden
of showing that Respondent’s decision to take adverse action against an employee was
motivated, at least in part, by antiunion considerations. 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation 5
Management Corp., 462 U.S. 393 (1983); American Red Cross Missouri-Illinois Blood Services
Region, 347 NLRB 347 (2006). To prove a violation under Wright Line, the General Counsel
must establish that: (1) the employee engaged in union and/or protected activity, (2) the
employer knew about the union activity, and (3) the employer harbored animosity towards the
union activity. Camaco Lorain Mfg. Plant, 356 NLRB 1182, 1184–1185 (2011); ADB Utility 10
Contractors, 353 NLRB 166, 166–167 (2008), enf. denied on other grounds 383 Fed. Appx. 594
(8th Cir. 2010). Animus may be inferred from the record as a whole, including timing and
disparate treatment. Brink’s, Inc., 360 NLRB No. 136, slip op. at 1 fn. 3 (2014); Camaco Lorain
Mfg. Plant, supra.
15
For the first and second prong of Wright Line, there is no question that the drivers
engaged in protected concerted activity when they voted in the Board election, and that the
employer knew about this activity. As for the third prong, the General Counsel has established
that Respondent harbored animosity towards the drivers’ union activity. A discriminatory
motive or animus may be established by circumstantial evidence, inferred from several factors, 20
including pretextual and shifting reasons given for the adverse action, the timing between the
employees’ protected activities and the adverse employment action. Temp Masters, Inc., 344
NLRB 1188, 1193 (2005); Promedica Health Systems, Inc., 343 NLRB 1351, 1361 (2004);
Flour Daniel, Inc. 311 NLRB 498 (1993).
25
Respondent’s actions around the time the Union’s representation petition was filed is
indicative of its animosity towards the potential for the Union to represent all the drivers in the
Boise yard. Forney held a series of mandatory off-site meetings with the drivers in which he
attempted to dissuade the drivers from voting for the Union. As set forth above, Forney also
threatened the drivers with reduced wages and vacation time if they voted for the Union. During 30
this first meeting, Forney solicited complaints from the drivers, and in response to the issue of
not having an opportunity to attend the annual truck rodeo, Forney promised to send the drivers
sweatshirts from the event, which he did. Forney also asked the drivers if they needed any more
uniforms, and upon the drivers’ request, sent them polo shirts which were rare to receive.
Furthermore, at this meeting, Forney asked the drivers to give him 6 months to address their 35
complaints before voting. At subsequent meetings, Forney and other representatives from
Respondent continued to press the drivers on why they wanted the Union to represent them.
Respondent presented a slideshow and video to the drivers depicting materials from strikes
against it by the Union. Furthermore, Forney met with the drivers individually to see if they had
any further questions about unionization. Forney also sent a letter to one of the drivers 40
explaining how he desired for the facility to remain “union free.”21

21 Although these allegations of unlawful benefits and solicitation of grievances was not alleged in the
complaint, I consider these actions as evidence of animus. See American Packaging Corp., 311 NLRB
482 fn. 1 (1993) (“law is well-settled that conduct that exhibits animus but that is not independently
alleged to violate the Act may be used to shed light on the motive for, or underlying character of, other
conduct that is alleged to violate the Act”).
JD(SF)-28-16
19
Since the General Counsel established animus, the burden shifts to the employer to
demonstrate that it would have taken the same action absent the protected conduct. Camaco
Lorain Mfg. Plant, supra; ADB Utility, supra. Respondent cannot sustain its burden. Clearly,
Respondent would not have applied the terms and conditions of the 2013 CBA to the drivers had
they not voted to be represented by the Union. Despite receiving notice from the Union at least 2 5
days prior to implementation of the 2013 CBA that it disagreed with Respondent’s assertion that
the 2013 CBA covered these newly represented employees, Respondent blatantly disregarded
such notice, and implemented the 2013 CBA terms and conditions on the drivers.
Respondent argues that Blyth made the decision, without animus, to apply the 2013 CBA 10
to the newly represented drivers due to his belief’s as to Respondent’s obligation (R. Br. at 32–
33). Although the evidence does not indicate that Blyth’s decision was based on union animus,
Forney’s clear animus towards the drivers voting in the union election may be imputed to Blyth
as Forney is a supervisor and/or agent of Respondent within the meaning of Section 2(11) and
Section 2(13) of the Act. Moreover, as briefed by the General Counsel, antiunion animus is not 15
necessary under the theory that Respondent’s conduct of unilaterally applying the 2013 CBA to
the newly represented drivers is inherently destructive of employee rights. See United Aircraft
Corp., 199 NLRB 658, 662 (1972); Eastern Maine Medical Center, 253 NLRB 224, 241–243
(1980), efd. 658 F.2d 1 (1st Cir. 1981); Harowe Servo Controls, Inc., 250 NLRB 958, 959,
1035–1036 (1980). Based on the record as a whole, I conclude that Blyth essentially admitted to 20
applying the 2013 CBA without negotiation because the drivers chose to unionize. Harowe
Servo Controls, supra at 1035; Eastern Maine Medical Center, supra at 243; United Aircraft,
supra at 662. This action was inherently destructive of employee rights.
Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act when it 25
discriminatorily reduced the wage rates and vacation and sick leave balances of bargaining unit
employees who voted in the Board election held on June 23.
CONCLUSIONS OF LAW
30
1. Respondent, U.S. Foods, Inc., is an employer engaged in commerce within the meaning
of Section 2(2), (6) and (7) of the Act.
2. The Charging Party, International Brotherhood of Teamsters, Local 483, is a labor
organization within the meaning of Section 2(5) of the Act.
3. Since July 2, 2015, the Charging Party has been the exclusive collective-bargaining 35
representative of the following appropriate unit of employees: all full-time and regular
part-time domicile delivery drivers employed by the Employer at its premises located at
4719 Market St., Building 2, Boise, Idaho, which is now part of the existing multi-state
delivery driver bargaining unit currently represented by the Union and other Teamsters
Locals.40
4. By unilaterally, on August 1 applying the terms and conditions of the current collective-
bargaining agreement (2013 CBA) then in effect between the Union and the Employer,
notwithstanding the objection of the Union, Respondent has refused to bargain
collectively with the Union and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the Act.45
JD(SF)-28-16
20
5. By threatening employees with reduced wages and vacation days, Respondent violated
Section 8(a)(1) of the Act.
6. By discriminatorily applying the 2013 CBA to the drivers who engaged in protected
concerted activity when they voted in the Board election, Respondent violated Section
8(a)(3) and (1) of the Act.5
7. By engaging in the unlawful conduct set forth in paragraphs 4, 5, and 6 above,
Respondent has engaged in unfair labor practices affecting commerce within the meaning
of Section 8(a)(5) and (1), Section 8(a)(1), Section 8(a)(3) and (1), and Section 2(2), (6)
and (7) of the Act.
REMEDY10
Having found that Respondent has engaged in certain unfair labor practices, I shall
recommend it to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, I recommend that Respondent shall be ordered to
reinstate the status quo ante as it existed for the drivers hired after September 30, 2011, prior to 15
August 1, 2015, except for such post-certification changes to which the Union agreed such as the
implementation of the health and welfare fund. The recommended Order will also require that
Respondent make employees whole for any loss of wages and benefits suffered as a result of its
unilateral action. Backpay shall be computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), 20
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
Respondent shall file a report with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also compensate the employees for the
adverse tax consequences, if any, of receiving one or more lump-sum backpay awards covering 25
periods longer than 1 year, Latino Express, Inc., 359 NLRB No. 44 (2012).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended22
30
ORDER
Respondent, U.S. Foods, Inc., Boise, Idaho, its officers, agents, successors, and assigns,
shall
35
1. Cease and desist from
(a) Unilaterally applying the existing collective-bargaining agreement (2013 CBA) we
have with the International Brotherhood of Teamsters, Local 483 (Union), for drivers
employed at the Boise yard after September 30, 2011, who by voting to be 40
represented, have indicated their desire to be included in the existing unit, described
hereafter, and currently represented by the Union:

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)-28-16
21
All full-time and regular part-time domicile delivery drivers employed by the
Employer at its premises located at 4719 Market St., Building 2, Boise, Idaho, which
is now part of the existing multi-state delivery driver bargaining unit currently
represented by the Union and other Teamsters Locals.5
(b) Threatening employees with reduced wage rates and vacation days because of their
union activity.
(c) Discriminatorily applying the 2013 CBA to the drivers who engaged in protected 10
concerted activity when they voted in the election.
(d) In any other manner interfering with, restraining, or coercing employees in the
exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:15
(a) Upon request, bargain with the Union, as the exclusive collective-bargaining
representative of the employees in the unit set forth above.
(b) Reinstate the status quo ante as it existed prior to August 1, 2015, with respect to 20
employees in the unit set forth above, except for such changes to which the Union
agreed, and make the employees whole for any losses occasioned by our unilateral
actions and as a result of the discrimination against them, in the manner set forth in
the remedy section of the decision.
25
(c) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place designated
by the Board or its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records, including an
electronic copy of such records if stored in electronic form, necessary to analyze the 30
amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its facility in Boise, Idaho copies
of the attached notice marked “Appendix.”23 Copies of the notice, on forms provided
by the Regional Director for Region 27, after being signed by the Respondent’s 35
authorized representative, shall be posted by the Respondent and maintained for 60
consecutive days in conspicuous places including all places where notices to
employees are customarily posted. In addition to physical posting of paper notices,
the notices shall be distributed electronically, such as by email, posting on an intranet
or an internet site, and/or other electronic means, if the Respondent customarily 40
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

23 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.”
JD(SF)-28-16
22
other material. In the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the
Respondent at any time since May 26, 2015.5
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
10
Dated, Washington, D.C. June 17, 2016
____________________
Amita Baman Tracy15
Administrative Law Judge
20
JD(SF)-28-16
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT do anything that interferes with these rights.
WE WILL NOT reduce your wages, vacation benefits, or sick leave balances, because you voted to
be included in the existing bargaining unit represented by International Brotherhood of
Teamsters, Local 483 (Union).
WE WILL NOT make changes to your wages, vacation days and any other terms and conditions of
employment without providing the Union with notice and an opportunity to bargain, and without
either reaching agreement or a valid impasse.
WE WILL NOT threaten you with a reduction in wages and vacation days because you chose to be
represented by a union.
WE WILL NOT discriminate against you because you chose to be represented by a union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of the rights listed above.
WE WILL, upon request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of the group of drivers who voted in the June 23, 2015, NLRB-
conducted election to be included in the existing bargaining unit already represented by the
Union.
WE WILL rescind changes to bargaining unit employees terms and conditions of employment,
including wage rates, vacation and sick day allotments that took effect August 1, 2015, when we
unilaterally applied the terms of the collective-bargaining agreement covering the existing
bargaining unit already represented by the Union to those employees who voted to join the
bargaining unit in the June 23, 2015 NLRB conducted election.
JD(SF)-28-16
WE WILL make Daniel Koeppel, Lucas Toomey, Rosendo Contreras, and Kenneth Mann whole
for any loss of earnings and other benefits resulting from our reduction of their wage rates,
vacation benefits and sick leave balances without bargaining with the Union plus interest
compounded daily.
WE WILL file a report with the Social Security Administration allocating backpay to the
appropriate calendar quarters.
WE WILL compensate Daniel Koeppel, Lucas Toomey, Rosendo Contreras, and Kenneth Mann
for the adverse tax consequences, if any, of receiving one or more lump-sum backpay awards
covering periods longer than 1 year.
U.S. Foods, Inc.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
600 17th Street, 7th Floor, North Tower, Denver, CO 80202-5433
(303) 844-3551, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/27–CA–158614 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (303) 844-6647.