MIKE-SELL'S POTATO CHIP CO.

National Labor Relations Board - Board Decisions

Aug 15, 2014

361 N.L.R.B. 205 (N.L.R.B. 2014)

MIKE-SELL’S POTATO CHIP CO. 205
Mike-Sell’s Potato Chip Co. and Bakery, Confection-
ary, Tobacco Workers and Grain Millers Inter-
national Union, Local 57, AFL–CIO–CLC. Case
09–CA–072637
August 15, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On March 19, 2013, the Board issued a Decision and
Order in this proceeding, which is reported at 359 NLRB
673. Thereafter, the Respondent filed a petition for re-
view in the United States Court of Appeals for the Dis-
trict of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, a
Division of the Noel Corp., 134 S.Ct. 2550 (2014), hold-
ing that the challenged appointments to the Board were
not valid. Thereafter, the Board issued an order setting
aside the Decision and Order, and retained this case on
its docket for further action as appropriate.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s supplemental decision and the record in light of
the exceptions and briefs. We have also considered the
now-vacated Supplemental Decision and Order, and we
agree with the rationale set forth therein.1 Accordingly,
we affirm the judge’s rulings, findings, and conclusions
and adopt the judge’s recommended Order2 to the extent
and for the reasons stated in the Supplemental Decision
and Order reported at 359 NLRB 673, which is incorpo-
rated herein by reference.3
1 In adopting the judge’s finding that the Respondent unlawfully
made midterm modifications to the health and welfare provisions of its
collective-bargaining agreement with the Union, we rely on Oak Cliff-
Golman Baking Co., 207 NLRB 1063 (1973), enfd. mem. 505 F.2d
1302 (5th Cir. 1974), cert. denied 423 U.S. 826 (1975).
2 Consistent with our decision in Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014), the judge’s recommended Order
is modified to require the Respondent to reimburse the discriminatees
for the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and to file a report with the Social Security Administra-
tion allocating the backpay to the appropriate calendar quarters. We
shall also substitute a new notice in accordance with our decision in
Durham School Services, 360 NLRB 694 (2014).
3 Member Johnson concurs that the Respondent made unlawful mid-
term modifications to the health and welfare terms of the parties’ col-
lective-bargaining agreement in violation of Sec. 8(a)(5) of the Act.
He notes that the Respondent has excepted to some of the judge’s cred-
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 vio-
lated 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
activities.

WE WILL NOT make midterm modifications to the
health and welfare terms of our collective-bargaining
agreement with the Bakery, Confectionary, Tobacco
Workers and Grain Millers International Union, Local
57, AFL–CIO–CLC (the B&C Union) without following
the contractual reopening procedures.
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 restore to our employees in the bargaining
unit represented by the B&C Union the contractual
health and welfare benefits they enjoyed before we modi-
fied the benefits on January 1, 2012.
WE WILL make whole, with interest, all employees in
the bargaining unit represented by the B&C Union for all
expenses incurred and all losses suffered as a result of
our unlawful modifications of the collective-bargaining
agreement, including depositing into the employees’
ibility findings. In reaching this conclusion, he does not rely on the
judge’s conjecture that the Union would not surrender on an important
issue in the parties’ short bargaining meeting. Parties may agree or
disagree in collective bargaining for a variety of reasons and the Board
should avoid passing on the validity of parties’ positions or strategies.
In other respects, Member Johnson finds the record supports the
judge’s findings, including the judge’s finding that the parties had
never agreed to a midterm modification of the magnitude of the January
2012 changes in health benefits without reducing the modifications to
writing. It was therefore reasonable for the judge to infer under the
circumstances that such a change would have been reduced to writing.
Member Johnson also agrees with the judge that inconsistencies in the
union representatives’ testimony about the location of their bargaining
meeting does not undermine their credibility about what was said in the
meeting, and that the human resource representative’s testimony about
the effect of the union representatives was inconsistent with the rest of
the evidence and therefore less reliable.

361 NLRB No. 23

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 206
health savings accounts the amounts we failed to con-
tribute.
WE WILL compensate bargaining unit employees for the
adverse tax consequences, if any, of receiving a lump-
sum award.
MIKE-SELL’S POTATO CHIP CO.

The Board’s decision can be found at
www.nlrb.gov/case/09–CA–072637 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.