MIKE-SELL'S POTATO CHIP COMPANY

National Labor Relations Board - Board Decisions

Jan 15, 2014

360 N.L.R.B. 131 (N.L.R.B. 2014)

MIKE-SELL’S POTATO CHIP CO. 131
360 NLRB No. 28
Mike-Sell’s Potato Chip Co. and General Truck Driv-
ers, Warehousemen, Helpers, Sales and Service,
and Casino Employees, Teamsters Local Union
No. 957. Case 09–CA–094143
January 15, 2014
DECISION AND ORDER
BY MEMBERS MISCIMARRA, HIROZAWA,
AND SCHIFFER
On June 18, 2013, Administrative Law Judge Geoffrey
Carter issued the attached decision. The Respondent
filed exceptions and a supporting brief. The Acting Gen-
eral Counsel and the Charging Party each filed an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Mike-Sell’s Potato Chip Co.,
Dayton, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.
Naima Clarke, Esq., for the Acting General Counsel.
Jennifer Asbrock, Esq., for the Respondent.
John R. Doll, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEOFFREY CARTER, Administrative Law Judge. This case
was tried in Cincinnati, Ohio, on April 15–17, 2013. General
Truck Drivers, Warehousemen, Helpers, Sales and Service, and
Casino Employees, Teamsters Local Union No. 957 (the Un-
ion) filed the initial charge on November 30, 2012,1 and filed
an amended charge on February 1, 2013. The Acting General
Counsel issued the complaint on February 21, 2013.
The complaint alleges that Mike-Sell’s Potato Chip Co. (Re-
spondent) violated Section 8(a)(5) and (1) of the National La-
bor Relations Act (the Act) by, on or about November 19,

1 We agree with the judge that the record evidence does not estab-
lish that the parties had bargained to a good-faith impasse prior to the
Respondent’s unilateral implementation, on November 19, 2012, of the
terms of its full and final offers. See Day Automotive Group, 348
NLRB 1257, 1263–1265 (2006); Taft Broadcasting Co., 163 NLRB
475, 478 (1967), enfd. sub. nom. Television Artists v. NLRB, 395 F.2d
622 (D.C. Cir. 1968). We would reach the same result even without
relying upon the judge’s finding that the Respondent set November 17,
2012, as an arbitrary deadline for reaching a new agreement, or upon
any consideration of subsequent offers of bargaining concessions by the
Union.
1 All dates are in 2012, unless otherwise indicated.
2012, unilaterally implementing the content of its last collec-
tive-bargaining agreement offer to the Union for the warehouse
and driver bargaining units, without first bargaining with the
Union to a good-faith impasse. Respondent filed a timely an-
swer denying the alleged violations in the complaint. On the
entire record,2 including my observation of the demeanor of the
witnesses, and after considering the briefs filed by the Acting
General Counsel, the Union, and Respondent, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation based in Dayton, Ohio, that en-
gages in the business of manufacturing and distributing potato
chips and other snack foods. On an annual basis, Respondent
purchases and receives goods at its Dayton, Ohio facility that
are valued in excess of $50,000 and come directly from points
outside of the State of Ohio. 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 Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
1. Company overview
Respondent distributes not only snack foods that it manufac-
tures, but also snack foods that are manufactured by other com-
panies. To carry out its operations, Respondent relies on the
following groups of employees (among others)3: route sales
drivers, who deliver the product from the warehouse to local
stores, stock and rotate product, collect payments, and work to
increase sales at the stores on their route;4 over-the-road driv-
ers, who deliver product from the warehouse to regional distri-
bution centers; and warehouse employees, who package prod-
uct in the warehouse for distribution by the over-the-road driv-
ers. (Transcript (Tr.) 26–28, 602–604.)

2 The transcripts in this case are generally accurate, but I hereby
make the following corrections to the record: p. 53, L. 4 should read
“Exhibit 38”; and p. 631, L. 12 should read “inconsistency there.”
I also emphasize that although I have included several 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 are based on my review and consideration of the entire record for
this case.
3 On March19, 2013, the Board issued a decision in which it found
that Respondent violated Sec. 8(a)(5) and (1) of the Act by failing to
follow contractual reopening procedures when it made midterm modifi-
cations to the health and welfare terms of its collective-bargaining
agreement covering 22 maintenance and production department em-
ployees represented by the Bakery, Confectionary, Tobacco, Workers
and Grain Millers International Union, Local 57, AFL–CIO–CLC.
Mike-Sell’s Potato Chip Co., 359 NLRB 673 (2013). The issues ad-
dressed in that case do not have any bearing on this case.
4 For example, a route sales driver might attempt to expand sales at
a particular store by arranging for a special display of Respondent’s
snack foods on a pallet or an “end cap” (shelves at the end of a grocery
store aisle). (Tr. 603.)
132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
For several years, Respondent has recognized the Union as
the exclusive collective-bargaining representative of Respond-
ent’s route sales drivers, over-the-road drivers, and warehouse
employees. Specifically, Respondent has recognized the Union
as the exclusive collective-bargaining representative of the
following appropriate bargaining units:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s]
Dayton Plant, Sales Division and at [Respondent’s] Sales
Branch in Cincinnati, Columbus, Greenville, Sabina and
Springfield, Ohio and all over the road drivers employed by
[Respondent], but excluding all supervisors, security guards,
and office clerical employees employed by [Respondent] (the
drivers unit); and
All warehousemen employed by [Respondent] at its Dayton,
Ohio facility, excluding all supervisors, security guards, and
office clerical employees employed by [Respondent] and all
other employees (the warehouse unit).
(GC Exhs. 2, 3 (art. I); see also GC Exhs. 1(e) and (g), pars. 5–
7.) Respondent’s recognition of the Union has been embodied
in a number of successive collective-bargaining agreements,
with the most recent drivers unit agreement being in effect from
November 17, 2008, to November 17, 2012, and the most re-
cent warehouse unit agreement being in effect from October 26,
2008, to October 26, 2012. (GC Exh. 1(g), par. 7; see also GC
Exhs. 2–3.)
2. The expiring collective-bargaining agreements—key
provisions
Respondent’s collective-bargaining agreements with the
drivers and warehouse units covered a broad range of issues,
but three areas (employee healthcare, pension, and commis-
sions for route sales drivers) would prove to be pivotal when
the parties began negotiating for successor agreements in 2012,
because they affect Respondent’s bottom line.
Both expiring agreements addressed employee health care by
providing full-time employees and certain retirees with the
opportunity to participate in Respondent’s Health Savings Ac-
count (a plan that Respondent administered, though Blue
Cross/Blue Shield provided the actual healthcare services).
Under the Health Savings Account, employees and retirees paid
a weekly administrative fee ($10 for single coverage; $20 for
family coverage), and were responsible for all healthcare ex-
penses until they reached their annual deductible ($2000 for
single employees/retirees, of which Respondent paid $500, and
$4000 for families, of which Respondent paid $1000).5 Re-
spondent was responsible for all expenses above the deductible.
(GC Exhs. 2, art. XVII (and Exh. D thereto); 3, a. XIV.)
Regarding pension, the expiring agreements called for Re-
spondent to participate in the Central States Southeast and
Southwest Areas Pension Plan, and make weekly contributions
to the pension plan for each employee who worked 1 or more
days during the applicable week. In 2008, Respondent paid a

5 In January 2012, Respondent reduced its annual payments towards
insurance deductibles to $250 for single employees/retirees, and $500
for families. The parties do not dispute that Respondent was permitted
to make those changes. (Tr. 61–63, 667–668.)
weekly contribution of $133.90 for each employee in the driv-
ers unit, and $91.80 for each employee in the warehouse unit.
By 2011–2012, Respondent’s weekly pension contribution per
employee had risen to $168.70 for each employee in the drivers
unit and $115.60 for each employee in the warehouse unit.
Employees did not make their own contributions to the pension
plan. (GC Exh. 2, art. XVIII; GC Exh. 3, art. XV; see also Tr.
37–38.)
And, regarding route sales driver commissions, the expiring
drivers unit agreement called for Respondent to calculate com-
missions based on gross sales (i.e., the bag price6 multiplied by
the total number of snack food bags sold). Specifically, route
sales drivers earned the following commissions on gross sales
of the following products:
Mike-Sell’s manufactured products: 13%
Non-manufactured products: 9%
Private-label products: 7%
Mike-Sell’s Chocolate Covered Potato Chips 3%
(GC Exh. 2, art. IV.)
As the expiration dates for the 2008–2012 collective-
bargaining agreements approached and the prospect of negotiat-
ing new agreements arose, Respondent had lost almost $5.5
million in the last 4 years, and was still in the midst of financial
difficulty. Respondent was struggling to compete with Frito
Lay, which had the ability to offer lower prices (to the point of
taking a temporary loss) because of its larger size and lower
operating costs.7 In addition, Respondent was concerned about
the cost of providing health care insurance to its employees,
and uncertainty about whether Respondent would incur new
expenses as a result of the Affordable Care Act. And, Re-
spondent faced increasing contributions to the employee pen-
sion plan, because the pension contributions were slated to
increase between 4–8 percent each year for the next 5 years.8
All of those factors led Respondent to have a keen interest in
negotiating successor collective-bargaining agreements that
would reduce Respondent’s operating expenses. (Tr. 404–409,
416–423; GC Exhs. 8, 14, 22.) By contrast, the Union believed
that it had sacrificed wages and other benefits in past years, and
accordingly was aiming to restore some of those lost wages and
benefits in the successor collective-bargaining agreements.

6 As Respondent explained, the “bag price” is the price stamped on
each bag of snack food. Respondent, however, customarily sells its
products to stores at a lower price than the bag price. That practice in
turn allows the store to set a “shelf price” that is lower than the “bag
price,” to entice consumers to buy the snack because it is “on sale” for
less than the bag price. (Tr. 423–425.) Thus, if store on a driver’s
route sold 100 bags of Respondent’s potato chips that bore a bag price
of $5, the commission would be 13 percent of $500 ($5 x 100 bags),
even if the shelf price for the bag was $4 and Respondent’s price to the
store was $3.
7 While Respondent had to buy its supplies (e.g., potatoes, corn
meal, etc.) on the open market, where prices were increasing, Frito Lay
owned farms that produced many of the commodities that it needed.
(Tr. 407–408; GC Exh. 8.)
8 Respondent faced a significant penalty of approximately $20 mil-
lion if it opted to withdraw from the pension plan altogether. (Tr. 269,
417.)
MIKE-SELL’S POTATO CHIP CO. 133
(See R. Exh. 8, pp. 1–2 (October 10 remarks of JM and RV,
members of the Union’s negotiating team).)
B. Summer/Fall 2012—Negotiations for Successor
Collective-Bargaining Agreements
1. Initial communications
On July 2, 2012, Michael Maddy, the Union’s business rep-
resentative, notified Respondent by mail that the Union intend-
ed to negotiate new collective-bargaining agreements for the
drivers and warehouse units before the existing agreements
expired in fall 2012. Maddy also stated that the Union’s nego-
tiating committee would like to meet with Respondent’s repre-
sentatives in the near future for negotiations. (Tr. 410–411; GC
Exhs. 4, 5.)
In letters dated August 13, Sharon Wille, Respondent’s di-
rector of human resources, responded to Maddy’s letters by
advising him that Respondent also wanted to negotiate new
collective-bargaining agreements, and would like to begin ne-
gotiations in late August or early September. (Tr. 410–411; GC
Exhs. 4, 5; see also R. Exh. 1, p. 4 (Wille proposed beginning
negotiations on August 31, but Maddy responded that he was
not available to meet at that time due to other obligations).)
The parties agreed to hold separate negotiation sessions for the
following groups: route sales drivers; over-the-road drivers; and
employees in the warehouse unit. (Tr. 35.)
2. Warehouse unit negotiations
On September 12, Respondent’s and the Union’s respective
negotiating teams met to begin talks about a successor collec-
tive-bargaining agreement for the warehouse unit. At the
meeting, Respondent spoke about its financial status, and as-
serted that it: was paying above-average wages and pension for
the warehouse unit in comparison to other employers in the
area; and faced increasing prices on commodities like potatoes
and cooking oil. (Tr. 36–39; GC Exh. 8.) The parties also
exchanged initial contract proposals, with both Respondent and
the Union using the expiring collective-bargaining agreement
as the foundation for their suggested modifications. (Tr. 36,
39–45; GC Exhs. 7, 9; see also GC Exh. 3.)
Between October 3 and November 15 (with negotiation ses-
sions held on October 3, 25, and 26, and on November 13 and
15), the parties exchanged various proposals and reached tenta-
tive agreements in all areas except for pension and healthcare.
(Tr. 234, 415; GC Exhs. 9, 12–13, 15, 23, 37–38, 43.)
On the issue of the pension plan, Respondent’s opening offer
called for both Respondent and each individual employee to
pay 50 percent of the weekly pension plan contribution.9 (Tr.
66; GC Exh. 15.) The Union, by contrast, sought to maintain
the current practice of Respondent paying the entire amount of
the weekly pension plan contribution. (Tr. 64–65; GC Exh. 9
(regarding art. XV); see also GC Exh. 14 (listing the pension
plan contribution increases for the 5 years following 2012).)

9 Because the pension plan did not allow employees to make pay-
ments directly to the plan, this 50-50 split would be accomplished by
Respondent paying the entire weekly pension plan contribution for each
employee, who would in turn reimburse Respondent for half of the
pension contribution via automatic deduction from their paycheck. (Tr.
66–67; GC Exh. 15.)
On October 25 and November 15, however, Respondent of-
fered a 1-year contract extension in which Respondent offered
to continue paying the weekly pension plan contribution at the
2012 rate, with employees taking on the responsibility of pay-
ing the amount in excess of the 2012 rate. (Tr. 141–142; GC
Exh. 44; see also Tr. 142 (Union opposed having employees
pay for the cost of pension plan contribution increases).)
Meanwhile, on the issue of employee healthcare, Respondent
requested discretion to “annually review medical insurance
plans and coverage to determine what, if any, health plan or
plans will be offered to employees,” because Respondent was
unsure about what would be required if the Affordable Care
Act went into effect. In addition, Respondent proposed that it
stop providing health insurance coverage to current and future
retirees. (Tr. 70; GC Exh. 15; see also Tr. 68–69 (the Union
opposed Respondent’s proposal).) The Union, by contrast,
wanted Respondent to continue providing employee health
insurance, but switch to the insurance plan provided by the
Central States Southeast and Southwest Area (Central States)
health and welfare funds.10 (Tr. 60–61, 152–153; GC Exh. 9
(regarding art. XIV).) In the 1-year contract extension that it
proposed on October 25 (and again on November 15), however,
Respondent offered to continue using the existing employee
healthcare plan, albeit with no current or future retirees covered
after December 31, 2012. (Tr. 141–142; GC Exh. 44.)
After reviewing Respondent’s proposed 1-year contract ex-
tension on November 15, Maddy advised Respondent that the
Union would wait until the route sales drivers’ negotiations
concluded. If the route sales drivers’ negotiations produced an
agreement on pension and employee healthcare, Maddy
planned to return to the warehouse unit to see if they would
agree to the same terms on those issues. (Tr. 195, 234.) When
one of Respondent’s negotiators asked Maddy if he was aware
that the drivers unit’s collective-bargaining agreement would be
expiring in a few days, Maddy responded yes, noted that the
warehouse unit’s agreement had already expired, and stated that
the Union was continuing to bargain. (Tr. 195–196.)
3. Over-the-road driver negotiations
The parties held their first negotiation session regarding the
over-the-road drivers on October 12. As it did in the ware-
house unit negotiations, Respondent began negotiations by
providing financial information to show that it had been losing
money in recent years due to competition from Frito Lay and
the increasing price of commodities necessary to manufacture
Respondent’s snack foods. Respondent also presented data
indicating that Respondent’s over-the-road drivers earned high-
er wages11 and received higher pensions than employees at

10 Respondent, through Wille, advised the Union that it would be
willing to look at any healthcare plan that might save Respondent mon-
ey. (Tr. 64, 70.) However, Respondent was skeptical of the Central
States plan not only because of its cost (which Respondent believed
would exceed its current health savings account plan), but also because
Respondent was not happy with the cost of the pension plan that Cen-
tral States administered. (Tr. 664–665.)
11 Under the expiring collective-bargaining agreement, over-the-
road drivers were paid $0.57 per mile, plus a $20 payment for each
time that the driver had to load or unload any freight from the trailer.
134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
similar companies. (Tr. 97–100; GC Exh. 22.) Based on that
financial background, Respondent presented the Union with a
contract proposal that, among other things, would cut the wages
of over-the-road drivers by paying a lower mileage rate (45
cents per mile instead of 57 cents), and reducing the number of
times that a driver would earn additional money for loading or
unloading freight (for example, by paying drivers for load-
ing/unloading work per trailer instead of per stop). (Tr. 101–
106; GC Exh. 25 (referencing proposed changes to language in
the existing collective-bargaining agreement).) The Union
countered with its own contract proposal, which included: a
proposed increase in the payment that drivers earn for loading
and unloading freight (from $20 to $25 per stop); the require-
ment that Respondent continue making weekly payments to the
pension plan on behalf of employees (with no employee contri-
butions or offset for pension plan contribution increases); and a
proposal that Respondent begin using the employee healthcare
plan offered by Central States. (Tr. 107, 110–111; GC Exh.
24.)
In negotiation sessions on October 29 and November 5, the
parties exchanged and discussed various proposals that covered
a range of issues, including wages, healthcare and pension. (Tr.
112–120; GC Exhs. 24–25, 29 (including handwritten notes
that indicate the parties’ responses and counteroffers to each
other’s initial proposals).) On the issue of healthcare, the Un-
ion provided Respondent with information about Central
States’ employee health care plan rates and coverage. (See GC
Exh. 27 (employee healthcare rates and plan information that
the Union received from Central States and forwarded to Re-
spondent on October 30).) After reviewing the Central States
healthcare plan proposal, Respondent maintained that the plan
would be more expensive than the health savings account plan
that Respondent currently was providing. (Tr. 117–118.)
Ultimately, the parties reached a tentative agreement that
covered all areas except for pension and healthcare, which
would be tabled: (a) to see if the route sales driver negotiations
could produce viable healthcare and pension proposals (since
route sales was the largest bargaining unit); and (b) to allow the
parties to meet with health insurance representatives about
healthcare plan costs and options. (Tr. 123–125, 232–233, 239,
248, 415–416; see also Tr. 124–125; GC Exh. 30 (tentative
agreement for over-the-road drivers reduced to writing and
signed on November 15).) As part of the tentative agreement,
the Union and Respondent agreed that over-the-road drivers
would continue to receive $20 for loading or unloading freight
from a single trailer, but set a maximum of $40 for load-
ing/unloading work per trailer.12 (GC Exh. 30.)
Through the tentative agreement with the over-the-road driv-
ers, Respondent was able to achieve some cost savings. (Tr.

Drivers did not receive any additional payments (beyond mileage) for
“drop and hook” deliveries, where the driver merely unhooked the
trailer from the truck and hooked up another trailer to take to a different
location. (Tr. 104–106; GC Exh. 2, art. IV, sec. 5.)
12 Thus, if a driver made four stops with a single trailer and loaded
or unloaded the trailer at each stop, the driver would earn $40 under the
tentative agreement ($20 per stop, but with a $40 maximum for a single
trailer), instead of $80 under the expiring collective-bargaining agree-
ment ($20/stop, with no maximum).
675.) Indeed, on November 6, Vice President of Operations
David Smith applauded the work of Respondent’s negotiating
team in reaching the tentative agreement by stating as follows
in an email to CEO Charles Shive:
Language and Wage Related issues excluding Pension and
Health Care were resolved in yesterday’s 3rd Bargaining Ses-
sion with the Over-The-Road Drivers. There is no wage in-
crease or benefit increases in the Agreed to Contract Lan-
guage. Conversely, the OTR Drivers have agreed to reduc-
tions in stop pay that will reduce Mikesell’s costs (wages
paid) by 6.4% annually or about $11,000 each 52 week period
of the new [bargaining agreement]. The annual OTR Driver
Pay is about $172,000. The savings will be greater as wage
related taxes, holiday pay, and vacation pay will be based on
smaller wages going forward with the lower stop pay.
The OTR Drivers remain in the same Agreement with the
Route Sales Drivers and will have to vote on the same Pen-
sion and Health language/costs negotiated with Route Sales
next week. Health Care costs with the OTR are minimal as 2
of the 3 drivers are opt-outs.
I can’t say enough about the team approach in reaching the
first phase of the Agreement with Pension and Health Care to
follow; Sharon and Steve were excellent.
(GC Exh. 47; see also Tr. 675–676.)
4. Route sales driver negotiations
a. October 10 bargaining session
On October 10, the parties met for their first bargaining ses-
sion concerning route sales drivers. Charles (Chuck) Shive,
Respondent’s CEO, began the discussions by outlining Re-
spondent’s increasing costs and declining sales, and then asked
the Union’s negotiating team what proposals they had that
would help the Company return to profitability. The Union
responded that the Company needed to improve the quality of
its product and become more organized with its sales to avoid
having items out of stock. The Union also asserted that it had
made concessions to Respondent every year, and thus made
proposals aimed at getting the bargaining unit back to where it
was before those concessions. (Tr. 73–75, 252–253, 435–436;
R. Exh. 8, pp. 1–3.)
The proposals that the parties exchanged on October 10 re-
flected their contrasting perspectives about what terms should
be included in any successor collective-bargaining agreement.
For example, on the issue of route sales driver commissions,
the Union proposed increasing route sales driver commissions
to 15 percent of gross sales on all products. By contrast, Re-
spondent proposed changing from using gross sales to “net
sales” when calculating commissions (using the same commis-
sion rates paid under the expiring agreement), a change that
would reduce the commission that drivers would earn for each
individual bag of snack food sold on their routes.13 (Compare

13 To illustrate, assume that a single bag of Mike-Sell’s potato chips
has a “bag price” (the price stamped on the bag) of $5, a shelf price (the
price set by the store) of $4, and a net price (the wholesale price that the
store pays Respondent for the bag) of $3. Under the expiring collec-
MIKE-SELL’S POTATO CHIP CO. 135
GC Exh. 17 (discussing art. IV, sec. 1) with GC Exhs. 18–19
(same); see also Findings of Fact (FOF), sec. II(A)(2) (under
the expiring collective-bargaining agreement, route sales driv-
ers earned a 13-percent commission on gross sales of Mike-
Sell’s manufactured products, 9 percent on nonmanufactured
products, 7 percent on private label, and 3 percent on chocolate
covered potato chips); Tr. 77–78.))
Similarly, the parties had contrasting proposals for employee
health care. Specifically, the Union proposed that Respondent
switch from its self-administered health savings plan to health
coverage under Central States Southeast and Southwest Areas
Health and Welfare Fund. (GC Exh. 17, art. XVII, sec. 1 (not-
ing that rates and benefits would be discussed at a later date).)
Respondent, by contrast, saw an uncertain future regarding
employee health care (as a result of the Affordable Care Act),
and thus was hesitant to commit to offering any kind of em-
ployee health insurance. Accordingly, in its proposal, Re-
spondent only offered to “annually review medical insurance
plans and coverage to determine what, if any, health plan or
plans will be offered to employees.” In addition, Respondent
proposed that it no longer provide medical or any other form of
insurance to current and future retirees. (GC Exh. 19, art. XXI,
secs. 1, 4; Tr. 88.)
And, regarding the employee pension plan, the Union pro-
posed that Respondent continue paying the entire cost of week-
ly contributions to the pension plan, including the increased
payments that the pension plan would require for the next 5
years. (GC Exh. 17 (discussing art. XVIII, sec. 7 of the con-
tract, and noting that the weekly contribution would be $182.20
per employee in the first year, and would rise to $225.70 per
employee by the fifth year).) Respondent, meanwhile, pro-
posed that its portion of the weekly pension contributions be
frozen at $91.10 per employee (50 percent of the total weekly
contribution in year one), with each employee taking on the
responsibility of also paying $91.10 per week, plus the full
amount of the yearly increases established by the pension plan.
(GC Exh. 19, art. XXII, sec. 5; Tr. 89.)
Respondent’s general reaction to the Union’s proposals was
that it did not see how it could possibly afford the increased
costs associated with the Union’s proposals. (Tr. 93, 250, 442.)
b. October 24 bargaining session
On October 24, the parties resumed negotiations for a suc-
cessor collective-bargaining agreement. When Respondent
confirmed that it was going to sell routes and distribution cen-
ters in the Columbus, Sabina, and Cincinnati, Ohio areas to
independent operators and layoff approximately 30 route sales
drivers who serviced those areas (effective November 12), the
parties tabled contract negotiations temporarily to focus on
establishing the severance packages that the affected employees

tive-bargaining agreement, a route sales driver would earn a commis-
sion on the bag price (or gross price) for each bag of chips sold (i.e., 13
percent of each $5 bag). By contrast, under Respondent’s proposal to
use net sales to calculate commissions, a route sales driver would earn
13 percent of $3 (the net price) for each bag of Mike-Sell’s potato
chips. (See Tr. 423–428, 615–616.)
would receive.14 (R. Exh. 8, pp. 27–28; see also Tr. 91–92,
126–127, 245, 255, 436, 443.)
Later in the afternoon, the Union and Respondent resumed
contract negotiations and exchanged responses about the con-
tract proposals that the parties presented on October 10. (Tr.
127; R. Exh. 8, p. 28.) While the parties were able to agree on
some issues,15 they did not reach any agreements or make new
proposals regarding route sales driver commissions, pension
contributions, or employee health care. Specifically, regarding
driver commissions, the Union indicated that it would be hard
for employees to accept the losses in wages that would poten-
tially arise if the Union agreed to change from using gross sales
to net sales to calculate commissions. Similarly, the Union
thought it would be hard for employees to accept Respondent’s
proposal that they pay for 50 percent (or more) of the weekly
pension plan contributions. Regarding health care, the Union
requested that the parties hold off on discussing that issue until
the Union could bring someone in from Central States to pro-
vide information about the cost of its health care plan. (GC
Exh. 18; Tr. 128, 134, 255–257, 263, 444–446; see also Tr. 256
(Maddy explained that he used the term “hard to accept” as a
polite way of saying “no”).)
In light of the parties’ limited progress in several areas,
Maddy stated that the parties were “worlds apart.” (Tr. 136.)
Maddy also announced that the Union would not be able to
meet on October 31, and would get back to Respondent to pro-
pose dates for the next bargaining session (to which the Union
planned to bring one of its attorneys). Wille reminded the Un-
ion that the route sales drivers’ collective-bargaining agreement
would reach its end date in 24 days. (Tr. 257–258, 446–447; R.
Exh. 8, p. 28; see also R. Exh. 5 (November 2 letter from Wille
to Maddy to propose dates to resume route sales driver bargain-
ing sessions); Tr. 231, 259260 (explaining that the Union was
not available to meet on November 7, 8, or 9 due to scheduling
conflicts).)
c. November 14 bargaining session
The parties began their November 14 bargaining session by
taking stock of the status of negotiations for a new agreement
covering the route sales drivers. Since the Union determined
that it would be hard for its members to accept Respondent’s
contract proposal, the Union suggested that Respondent consid-
er extending the expiring collective-bargaining agreement by 1
year (with the same health savings plan for employee
healthcare, and with Respondent paying the increased pension
contribution) to see if Respondent’s financial condition im-

14 Respondent first mentioned its plan to sell the Columbus, Sabina,
and Cincinnati routes and distribution centers in the October 10 bar-
gaining session. (Tr. 91, 436.) The parties agree that in light of a prior
arbitrator’s decision, Respondent was permitted to eliminate (or sell)
routes and distribution centers. (Tr. 96–97.)
15 For example, the parties agreed to: modify contract language
about “pull up” (stocking) work performed on holidays; allow 3 days
for employees to provide a doctor’s excuse for sick days (instead of 1
day); and extend the funeral leave policy to apply to the death of a
brother-in-law or sister-in-law. (GC Exh. 17 (identifying tentative
agreements reached on October 24 regarding route sales drivers); see
also Tr. 79–81, 85, 446.))
136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
proved as a result of the various changes it had already imple-
mented. In response, Respondent made it clear that it was not
interested in extending the old agreement. Respondent did,
however, counter with an offer for a 1-year agreement that
would be based on its October 10 contract proposal, except that
(a) route sales driver commissions would be calculated based
on net sales using the following (higher) percentages: 14.5
percent for Mike-Sells manufactured products, 9 percent for
nonmanufactured products; and 3 percent for chocolate covered
chips;16 and (b) Respondent would freeze its weekly pension
contribution at $168.70 per employee, and employees would
pay the amount that the pension plan contribution increased
above Respondent’s contribution ($13.50/week in 2013, to
make a total weekly amount of $182.20). Ultimately, the Un-
ion and Respondent rejected each other’s proposed 1-year con-
tract extensions. (Tr. 159–161, 311–312, 332–333, 448–449,
610, 646–648; GC Exh. 39, pp. 1–2; R. Exh. 8, pp. 37–38.)
Next, Respondent turned the discussion to explaining why it
was proposing changes to route sales driver commissions and
the pension plan. On the issue of the pension plan, Respondent
explained that it was looking to its employees to help with pen-
sion contributions because Respondent faced increasing pen-
sion liabilities that exceeded the liabilities of comparable em-
ployers in the area. The Union did not dispute that claim, but
responded that its members had foregone wage increases in the
past to compensate Respondent for paying the increasing pen-
sion contributions. (Tr. 163, 449–450; R. Exh. 8, p. 39.) On
the issue of commissions, Respondent maintained that if com-
missions were based on net sales instead of gross sales, Re-
spondent would be in a better position to increase profits be-
cause it would have more flexibility to manipulate the bag price
for snack foods to entice consumers to buy its products (e.g.,
because a larger difference between the bag price and the shelf
price might make the snack foods seem like a good value in the
store), and would be able to manipulate the bag price without
that resulting in a higher commission for route sales drivers.17
(Tr. 163, 334, 449; R. Exh. 8, p. 38; see also Tr. 423–425,
427).)
In the latter part of the November 14 bargaining session,
both Respondent and the Union presented new offers related to
commissions, healthcare and pension. Regarding commissions,
the Union agreed for the first time to use net sales figures to
calculate commissions, and proposed the following commission
rates:
Mike-Sell’s manufactured products: 15%;

16 Commissions on private label products were not mentioned, but
presumably would have stayed at 7 percent under Respondent’s pro-
posal. (See Tr. 162.)
17 Respondent also maintained that since its ability to manipulate the
bag price would lead to higher sales, route sales drivers would receive a
similar amount of total commissions even if net sales were used to
calculate commissions. (Tr. 313–314, 428.) The evidentiary record
includes an exhibit (GC Exh. 39) that Respondent provided to the Un-
ion during negotiations to support its position that total driver commis-
sions would stay the same or increase under net sales commission
framework, but I have given little weight to the content of that exhibit
since none of the parties presented reliable evidence to explain the
information in the exhibit. (See GC Exh. 39; Tr. 592–596.)
Nonmanufactured products 10%;
Private label products: 7%; and
Mike-Sell’s chocolate covered potato chips: 3%
(GC Exh. 40, p. 3; R. Exh. 8, p. 39; Tr. 169–170, 313, 336.)
Respondent countered with its own improved offer on commis-
sions based on net sales, which included the following commis-
sion rates:
Mike-Sell’s manufactured products: 14.5% in the first year,
with an increase to
15% if the dollar value
of sales increased by
3%;
Nonmanufactured products: 9%;
Private label products: 7%; and
Mike-Sell’s chocolate covered
potato chips: 3%
(GC Exh. 40, p. 5; Tr. 171, 338, 454, 626–627, 663.)
Similarly, the Union presented a new offer regarding em-
ployee health care, as it proposed that Respondent use Central
States as its health care provider, with a composite (per em-
ployee) rate of $272.80 per week. The Union added that em-
ployees would agree to pay $30/week of the composite rate, but
Respondent rejected that proposal because it believed the Cen-
tral States plan would still be more expensive than Respond-
ent’s health savings account plan.18 (Tr. 178–179, 315; GC
Exh. 40, p. 4; R. Exh. 8, p. 41.) And, regarding pension, Re-
spondent rejected the Union’s suggestion that Respondent
should pay the entire weekly pension contribution
($182.20/week per employee in the first year), and instead pro-
posed that the parties freeze Respondent’s weekly pension con-
tributions at $168.70, and that employees reimburse Respond-
ent for any pension contribution increases above the $168.70
amount.19 (Tr. 180, 188, 339, 455; GC Exh. 40, pp. 5–6 (dis-
cussing art. XVIII, sec. 7 of the expiring collective-bargaining
agreement); see also GC Exh. 35, art. 22, sec. 5 (implementing
Respondent’s pension proposal).)
The parties concluded the November 14 bargaining session
at approximately 8 p.m. without agreeing on any of the new
proposals for commissions, health care and pension, prompting
Union Attorney John Doll to remark that he did not believe the
parties “moved the ball very far” in negotiations.20 Phil Kazer,

18 Previously, the Union had proposed that Respondent offer sepa-
rate health insurance rates through Central States for individual
($128.60) and family coverage ($306.90). (GC Exh. 27; see also Tr.
159.)
19 As noted above, Respondent made a similar proposal earlier in
the day regarding pensions, but that proposal was limited to a 1-year
contract extension based on Respondent’s contract proposal. Later (as
noted here), Respondent offered to have employees pay for pension
contribution increases in the context of a multiyear agreement.
20 The parties did agree on contract language regarding the follow-
ing areas, among others: holiday schedule (art. VII, sec. 1 of the expir-
ing contract); setting minimum weekly pay for route sales drivers and
extra sales drivers as $450 or the commission from the route, whichever
is greater (art. IV, sec. 2(A); and increasing the number of days that
route sales drivers would have to return to work after being recalled
from a layoff (art. VIII(A), secs. 2–3). (Tr. 170, 173–174, 176; GC
MIKE-SELL’S POTATO CHIP CO. 137
a member of Respondent’s negotiating team and also Respond-
ent’s vice president of sales, replied that “we made good
movement today.”21 Respondent offered to meet again on No-
vember 16 (before the route sales drivers’ collective-bargaining
agreement expired), and noted that it did not intend to extend
the expiring collective-bargaining agreement. The Union de-
clined a November 16 meeting because it was not certain that
its representatives would be available, but promised to get back
to Respondent to propose some dates to resume negotiations
(and later advised Respondent that it could meet on November
27). (Tr. 189–190, 282–283, 341–345, 451–452, 456–457,
463–464, 664; GC Exh. 40, p. 6; R. Exh. 8, p. 42.)
C. Respondent Declares Impasse and Unilaterally
Implements its Final Offers
1. November 16—Respondent presents its full
and final offers
On November 16, Respondent notified the Union that its
most recent contract proposals for the warehouse unit and the
drivers unit (including both over-the-road drivers and route
sales drivers) would stand as Respondent’s full and final con-
tract offers. Wille stated as follows in a letter (dated November
15, but delivered on November 16) to Maddy:
This letter will confirm our conversation of yesterday in
which the Company asked to meet with your Union and your
Union committee with regard to our Labor Agreement for the
Sales/Over-the-Road group, which is due to expire on No-
vember 17, 2012. Since you indicated that you would not be
available to meet either today or tomorrow, I wish to inform
you that our last proposal to you, which was made on
Wednesday, November 14, 2012 (see attached) is the Com-
pany’s full and final offer. We have also attached a full and
final offer for the Warehouse group. We would request that
you take these Final Offers to a vote of the Union member-
ship before the Labor Agreement expires.
If you have any questions concerning the above, please do not
hesitate to contact me. We do remain available to meet any
time before the current Labor Agreement expires.
(GC Exh. 34; see also Tr. 197–198, 284–285, 464–465; GC
Exhs. 35–36 (full and final offers for route sales drivers and the
warehouse unit).)
Wille and Maddy spoke briefly on November 16 when Wille
delivered the letter to Maddy. Upon hearing that Respondent
was presenting full and final offers because the Union was not
willing to meet, Maddy responded that the Union was willing to
meet, but simply had scheduling conflicts. Maddy also disa-
greed with Wille’s assertion that the parties were at impasse,
and stated his belief that the parties were still negotiating and
would ultimately work out an agreement. (Tr. 199–200, 285;
see also Tr. 465.)

Exh. 40, pp. 5–6; see also Tr. 276–282 (noting that the parties had
reached a similar agreement regarding layoff recalls for OTR drivers).)
21 There is some ambiguity about whether Kazer was referring to
both parties or just Respondent when he used the term “we,” but that
ambiguity is not material to my analysis. (See Tr. 283, 457, 657–658.)
2. November 18–19—Respondent declares impasse and
implements its full and final offers
On November 18, Wille sent another letter to Maddy to noti-
fy him that Respondent was declaring an impasse in negotia-
tions, and thus would be implementing its full and final contract
offers. Wille advised Maddy as follows:
As you know, the Labor Agreement between Mike-Sell’s and
your Union covering the Sales/Over-the-Road group expired
on November 17, 2012, and the Company’s full and final of-
fer, which was given to the Union on November 16, 2012,
was not accepted by the Union. Likewise, the Union did not
accept the Company’s full and final offer for the Warehouse
group, which was made by the Company on November 16,
2012, that Labor Agreement having expired on October 26,
2012.
Given the above, and all the events that have transpired over
the bargaining of replacement labor agreements for these
units, an impasse exists in each of these negotiations. Accord-
ingly, the Company intends to implement the terms of its full
and final offers for both units (the Sales/Over-the-Road group
and the Warehouse group) effective Monday, November 19,
2012.
(GC Exh. 33; see also Tr. 466–468; R. Exh. 10 (Wille’s email
to Maddy dated November 18, 2012, with impasse letter at-
tached).)
On November 19, Respondent implemented the terms of its
full and final offers to the Union regarding the drivers unit and
warehouse unit. (Tr. 468.) Those terms incorporated:
(a) Respondent’s original proposal to have the authority to
decide what health plan to offer each year (if any), but
with the commitment to continue Respondent’s existing
health savings account plan for 2013 (see GC Exh. 35,
Article 21, Section 1; GC Exh. 36, Article XIV, Section
1);
(b) Respondent’s November 14 proposal to have employees
pay for any pension plan contribution increases above
the frozen contribution amount that Respondent would
pay (see GC Exh. 35, Article 22, Section 5; GC Exh. 36,
Article XV, Section 6); and
(c) Respondent’s November 14 proposed commissions for
route sales drivers (see GC Exh. 35, Article 4, Section
1).
(GC Exhs. 35–36; see also Findings of Fact (FOF), sec.
II(B)(4)(c), supra).
D. Postimplementation Negotiations
After Respondent declared impasse and unilaterally imple-
mented the terms in its full and final contract offers, the parties
returned to the bargaining table for a series of negotiation ses-
sions from December 5, 2012, to March 20, 2013,22 regarding
route sales drivers. (Tr. 206.) Although those negotiations
touched on a variety of topic, two noteworthy developments

22 The parties met on the following dates after implementation: De-
cember 5 and 7, 2012; January 3 and 22, February 13 and 27, and
March 20, 2013. (Tr. 288; R. Exh. 8.)
138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
occurred when the parties met on December 5. First, the Union
made a new offer for route sales driver commissions by propos-
ing the following commission rates on net sales:
Mike-Sell’s manufactured products: 15%;
Nonmanufactured products: 9.5%;
Private label products: 7%; and
Mike-Sell’s chocolate covered potato chips: 3%
(R. Exh. 8, p. 43; see also Tr. 207, 351.)
Second, the Union made a new offer regarding employee
health care. The Union maintained its request that Respondent
use Central States as its health insurance provider and the com-
posite rate of $272.80 per week for each employee. However,
the Union also proposed that employees contribute $40 per
week towards the composite rate in the first year, with the em-
ployee portion increasing to $44 in year two, and $48 in year
three. (R. Exh. 8, p. 43; see also Tr. 207–208, 351–352, 553.)23
The parties did not reach an accord on either of these proposals,
or on any of the modifications thereto that were proposed in
bargaining sessions between December 5, 2012, and March 20,
2013. (Tr. 215, 353; see also Tr. 519–522, 678–679, 711–712;
R. Exh. 8, pp. 43–44, 53–54, 57, 62–63, 65, 67, 71 (additional
proposals and responses regarding route sales driver commis-
sions); Tr. 553–557; R. Exh. 8, pp. 43, 50, 53, 57, 60, 62–63,
65, 67, 70 (additional proposals and responses regarding em-
ployee health care).)24

23 I do not credit Wille’s testimony that on December 7, the Union
revoked all of its previous offers and reinstated its October 10 proposal.
(Tr. 486, 518–519, 552, 554, 639–643, 706–707.) Wille’s notes, on
which she relied for much of her testimony, erroneously state that the
Union referred back to its proposals from October 5, a date on which no
bargaining session occurred. (R. Exh. 8, p. 49.) That error, coupled
with the fact that there was a bargaining session on December 5, the
fact that Wille’s notes do not reflect any objection to what Wille now
characterizes as a regressive proposal from the Union, and the fact that
on later dates the parties discussed proposals that the Union allegedly
revoked on December 7, renders Wille’s testimony and notes unreliable
on this issue. (See Tr. 641–644, 706–707; R. Exh. 8, pp. 49–50.)
24 After December 5, the parties made the following proposals re-
garding route sales driver commissions: (a) January 22, 2013–Union
offered 14.5 percent on Mike-Sell’s manufactured products in the first
year, and 15 percent in the second and third years (with no required
increase in sales to trigger the higher commission rate); (b) February
13, 2013–Respondent offered to have higher commission rates on
Mike-Sell’s manufactured products triggered by a 3-percent increase in
the number of “units” (bags) sold (instead of a 3-percent increase in the
total dollar value of net sales); (c) February 27, 2013–Union offered to
have higher commission rates triggered by a 1-percent increase in unit
sales for the entire bargaining unit, and later in the day offered a 1.5-
percent increase in unit sales as the trigger for higher commission rates;
and (d) March 20, 2013–Union offered to have higher commission rates
triggered by a 1.75-percent increase in unit sales for the entire bargain-
ing unit. (R. Exh. 8, pp. 53–54, 57, 62–63, 65, 67, 71.)
Similarly, after December 5, the parties made the following pro-
posals regarding employee health care: (a) December 7 – Union pro-
posed to use the Central States health care plan, but allow that issue to
be reopened upon request in the second or third year of the contract; (b)
January 22, 2013 – Union proposed to continue using Respondent’s
existing health care plan, with certain modifications; and (c) February
27, 2013 – Union proposed maintaining Respondent’s existing health
care plan for 2013, and then allowing employees and retirees the oppor-
Discussion and Analysis
A. Credibility Findings
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 Con-
struction 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); see also Roosevelt Memorial Medical Center,
348 NLRB 1016, 1022 (2006) (noting that 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 ver-
sion of events, particularly when the witness is the party’s
agent). Credibility findings need not be all-or-nothing proposi-
tions—indeed, nothing is more common in all kinds of judicial
decisions than to believe some, but not all, of a witness’ testi-
mony. Daikichi Sushi, 335 NLRB at 622.
In this case, credibility is generally not at issue because all
three witnesses (two called by the Acting General Counsel and
one called by Respondent) provided testimony that generally
was corroborated by documentation admitted into evidence and
the testimony of other witnesses. The findings of fact accord-
ingly incorporate the testimony of all three witnesses who testi-
fied at trial, to the extent that their testimony was based on their
personal knowledge and was corroborated by other evidence.
To the extent that credibility issues did arise, I have stated my
credibility findings in the findings of fact above.
B. Did Respondent Violate the Act When it Unilaterally
Implemented its Full and Final Offers on
November 19, 2012?
1. Complaint allegations and applicable legal standards
The Acting General Counsel alleges that Respondent violat-
ed Section 8(a)(5) and (1) of the Act when, on or about No-
vember 19, 2012, it unilaterally implemented its full and final
offers for the driver and warehouse units without first bargain-
ing with the Union to a good-faith impasse. (See GC Exh. 1(e),
pars. 9–10.)
“Under the unilateral change doctrine, an employer’s duty to
bargain under the Act includes the obligation to refrain from
changing its employees’ terms and conditions of employment
without first bargaining to impasse with the employees’ collec-
tive-bargaining representative concerning the contemplated
changes.” Lawrence Livermore National Security, LLC, 357
NLRB 203, 205 (2011). The Act prohibits employers from
taking unilateral action regarding mandatory subjects of bar-
gaining such as rates of pay, wages, hours of employment and

tunity to opt out of the plan in exchange for monthly payments of
$1400. Later in the day, the Union reduced the opt-out payments to
$1200 for employees and $1000 for retirees. (R. Exh. 8, pp. 50, 53, 65,
67, 70.)
The record does not indicate that the parties discussed any new pen-
sion proposals after Respondent implemented its full and final offers on
November 19. (See Tr. 215; R. Exh. 8, pp. 50, 53.)
MIKE-SELL’S POTATO CHIP CO. 139
other conditions of employment. Garden Grove Hospital &
Medical Center, 357 NLRB 653 fn. 4, 5 (2011). Notably, an
employer’s regular and longstanding practices that are neither
random nor intermittent become terms and conditions of em-
ployment even if those practices are not required by a collec-
tive-bargaining agreement. Id; see also Palm Beach Metro
Transportation, LLC, 357 NLRB 180, 183–184 (2011) (noting
that the party asserting the existence of a past practice bears the
burden of proof on the issue, and that the evidence must show
that the practice occurred with such regularity and frequency
that employees could reasonably expect the practice to continue
or reoccur on a regular and consistent basis), enfd. 459 Fed.
Appx. 874 (11th Cir. 2012).
On the issue of whether the parties bargained to an impasse,
the Board defines a bargaining impasse as the point in time of
negotiations when the parties are warranted in assuming that
further bargaining would be futile because both parties believe
they are at the end of their rope. See Whitesell Corp., 357
NLRB 1119, 1182 (2011); Daycon Products Co., 357 NLRB
1071, 1081 (2011), enfd. 494 Fed. Appx. 97 (D.C. Cir. 2012).
The question of whether an impasse exists is a matter of judg-
ment based on the following factors: the bargaining history; the
good faith of the parties in negotiations; the length of the nego-
tiations; the importance of the issue or issues as to which there
is disagreement; and the contemporaneous understanding of the
parties as to the state of negotiations. Id. The party asserting
impasse bears the burden of proof on the issue. Daycon Prod-
ucts Co., 357 NLRB 1071, 1081.
2. Analysis
As described in the findings of fact, the parties began con-
tract negotiations for the warehouse unit on September 12, and
began separate negotiations with two different parts of the driv-
ers unit (over-the-road drivers and route sales drivers) on Octo-
ber 3 and 10, respectively. Despite having conflicting goals
(with Respondent looking to cut costs and the Union looking to
restore lost benefits and wages), the parties worked out tenta-
tive agreements for both the warehouse unit and over-the-road
drivers on all issues except for the pension plan and employee
healthcare. By its own admission in a November 6 email, Re-
spondent was particularly pleased with its tentative agreement
with the over-the-road drivers, because Respondent avoided
any wage increases, and negotiated a cut in the amount that it
would pay drivers for loading and unloading items at various
delivery stops (resulting in a yearly savings of $11,000). (FOF,
secs. II(B)(1)–(3), supra.)
With tentative agreements for the warehouse unit and over-
the-road drivers in place, the parties turned to route sales driv-
ers, with the hope of working out a comprehensive agreement
that would not only resolve all issues specific to route sales
drivers, but also resolve the parties’ disagreements about the
pension plan and employee healthcare (two issues that were
tabled in the warehouse unit and over-the-road driver bargain-
ing sessions). Once again, the parties initially staked out con-
flicting positions. Indeed, on October 10: (a) Respondent pro-
posed using net sales to calculate driver commissions (a change
that would lower the commission paid on each item of snack
food), while the Union proposed higher commission rates based
on gross sales; (b) Respondent proposed having employees pay
half of the cost of weekly pension plan contributions (plus any
future increases in the required contribution amount), while the
Union proposed having Respondent continue paying the entire
weekly pension plan contribution; and (c) Respondent proposed
assigning itself significant discretion to select its health care
plan each year (including the option to decide not to offer a
health care plan), while the Union proposed using Central
States as the employee health care provider, with Respondent
paying all premiums. (FOF, sec. II(B)(4)(a), supra.)
On November 14, however, the parties made significant
moves to advance negotiations. On the issue of commissions,
the Union agreed for the first time to use net sales to calculate
commissions, while Respondent increased some of the com-
mission rates that it would be willing to pay under a net sales
framework. Meanwhile, on the issue of pensions, Respondent
dropped its proposal of a 50–50 split in costs with employees,
and instead offered to pay a frozen weekly amount of $168.70
per week, with the employees only responsible for any amounts
over the $168.70 floor. And, on employee healthcare, the Un-
ion presented a new Central States plan based on a composite
(per employee) rate of $272.80, and attempted to sweeten its
offer by proposing that employees pay $30 per week towards
the composite rate (with Respondent paying the remainder). In
short, while the parties did not reach a final agreement on No-
vember 14, they made significant progress that included con-
cessions from both sides. Instead of continuing to negotiate,
however, Respondent (on November 16) converted its existing
proposals into “full and final” offers because it did not wish to
continue operating under the expiring collective-bargaining
agreements. (FOF, secs. II(B)(4)(c) and (C), supra.)
With that factual backdrop, I find that the parties were not at
impasse when Respondent implemented the terms of its full and
final offers on November 19. The evidentiary record establish-
es that each party participated in negotiations in good faith
before Respondent declared impasse, as they met for bargaining
sessions on twelve occasions (combining all groups) in a two-
month time period, and hammered out several tentative agree-
ments through their efforts. When the end-date of the expiring
collective-bargaining agreement for the drivers unit drew near,
however, Respondent set the November 17 expiration date as
an artificial deadline for working out a new agreement, and
subsequently declared impasse without regard to the significant
concessions that each party made only a few days earlier (on
November 14).
Respondent’s decisions to declare impasse and unilaterally
implement its full and final offers under the circumstances de-
scribed above ran afoul of the Act for multiple reasons. First,
the Board has held that “an employer’s declaration of impasse
is not valid when it is motivated by an employer’s determina-
tion to implement cuts immediately upon the expiration of the
contract.” Newcor Bay City Division, 345 NLRB 1229, 1240
(2005); see also CBC Industries, 311 NLRB 123, 127 (1993)
(finding no impasse where the respondent “was determined to
abandon certain terms of the contract at its expiration irrespec-
tive of the state of negotiations”). Here, Respondent repeatedly
declared its intention to move on from the expiring contracts,
140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
but acted on that desire well before the parties reached the ends
of their respective negotiating ropes.
Second, the Board has recognized that where a party has al-
ready made significant concessions indicating a willingness to
compromise further, “it would be both erroneous as a matter of
law and unwise as a matter of policy for the Board to find im-
passe merely because the party [that made concessions] is un-
willing to capitulate immediately and settle on the other party’s
unchanged terms.” Grinnell Fire Protection Systems Co., 328
NLRB 585, 586 (1999) (noting that a finding of impasse under
those circumstances “would encourage rigid, inflexible postur-
ing in place of the give-and-take of true bargaining”), enfd. 236
F.3d 187 (4th Cir. 2000), cert. denied 534 U.S. 818 (2001); see
also Royal Motor Sales, 329 NLRB 760, 772 (1999) (finding
that the parties were not at impasse, in part because one of the
union’s proposals demonstrated flexibility and significant
movement, and thus raised the possibility that further negotia-
tion might produce other or more extended concessions), enfd.
2 Fed. Appx. 1 (D.C. Cir. 2001). In this case, when the Union
agreed on November 14 to calculate route sales driver commis-
sions based on net sales (as Respondent proposed, albeit with
different commission rates), the Union opened the door to pos-
sible compromises on other issues. Instead of seizing the op-
portunity for further negotiation towards a potential agreement,
Respondent declared impasse only 4 days’ later.
In its defense, Respondent alleges that the Union engaged in
dilatory tactics to avoid reaching a new agreement that would
likely include assorted cuts to bargaining unit wages and bene-
fits. (R. Posttrial Br. at 17–18.) Respondent’s defense falls
short, however, because it is not supported by the evidentiary
record. For starters, I find that both parties were responsible for
the fact that bargaining sessions did not begin until September.
Indeed, Respondent took 6 weeks to reply to the Union’s July 2
notification of its intent to bargain for new contracts. Once
Respondent (on August 13) also expressed an interest in such
bargaining (with a proposed initial session on August 31), the
Union was not available until the parties’ first bargaining ses-
sion on September 12. (FOF, secs. II(B)(1)–(2), supra.)
Further, although Respondent asserts that the Union agreed
to a small number of bargaining sessions and canceled two
route sales driver bargaining sessions in October, I do not find
that the Union engaged in dilatory tactics that would warrant or
support declaring impasse. To the contrary, the parties did
meet for 12 bargaining sessions in a 2-month period (combin-
ing all groups), and the Union remained available to meet for
additional sessions when Respondent abruptly converted its
proposals into full and final offers, and subsequently declared
impasse 2 days’ later when those offers were not accepted.
(FOF, secs. II(B)(2)–(4) and (C), supra.)
In sum, none of the relevant factors show that the parties
reached an impasse in their negotiations. The length of nego-
tiations was relatively brief (12 sessions over 2 months), and
notwithstanding the short timeframe, the parties worked out
several tentative agreements. The parties did spend some time
going back and forth about route sales driver commissions, the
pension plan, and employee healthcare, but that was to be ex-
pected given the economic importance and complexity of those
issues. And, on November 14, both parties were willing to
schedule additional meetings to continue working towards an
agreement. It was Respondent who brought the process to a
halt when it decided to use the November 17 expiration date of
the driver’s unit collective-bargaining agreement as the arbi-
trary deadline for negotiations.
Since the evidentiary record demonstrates that neither party
was at the end of its negotiating rope when Respondent de-
clared impasse on November 18, or when Respondent unilater-
ally implemented the terms of its full and final offers on No-
vember 19, I find that Respondent did not carry its burden of
showing that the parties reached a good-faith impasse before it
took unilateral action.25 And, since Respondent did not fulfill
its duty to bargain with the Union to a good-faith impasse be-
fore it unilaterally implemented the terms of its full and final
offers on November 19, and the full and final offers addressed
mandatory subjects of bargaining, I find that Respondent vio-
lated Section 8(a)(5) and (1) of the Act as alleged in the com-
plaint.
CONCLUSIONS OF LAW
1. By, on or about November 19, 2012, unilaterally imple-
menting its full and final offers for the warehouse and driver
units without first bargaining with the Union to a good-faith
impasse, Respondent violated Section 8(a)(5) and (1) of the
Act.
2. By committing the unfair labor practices stated in Conclu-
sion of Law 1 above, the Respondent has engaged in unfair
labor practices affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent engaged in certain unfair la-
bor practices, I shall order Respondent to cease and desist
therefrom and to take certain affirmative action designed to
effectuate the policies of the Act.
Respondent shall immediately put into effect all terms and
conditions of employment provided by the warehouse unit con-
tract that expired on October 26, 2012, and the drivers unit
contract that expired on November 17, 2012, and shall maintain
those terms in effect until the parties have bargained to agree-

25 My finding that the parties were not at the end of their negotiating
rope on November 19 is supported by the fact that the Union offered
additional concessions in its proposals for route sales driver commis-
sions and employee health care on December 5, after Respondent de-
clared impasse. (See FOF, sec. II(D), supra.)
In that connection, I note that at the start of trial, I denied Respond-
ent’s request to exclude any testimony about negotiations that occurred
after November 18, the date of the alleged impasse. Respondent main-
tained that any such negotiations would be irrelevant to the question of
whether a good-faith impasse existed on November 18, but I disagreed
because developments in post-implementation negotiations can demon-
strate that one or more of the parties still had room to negotiate when
impasse was declared. See, e.g., Hospital San Cristobal, 358 NLRB
769, 781 (2012) (both the union and the employer made new, concilia-
tory proposals in a bargaining session that occurred after the employer
had declared impasse). The Union’s December 5 proposals in this case
(among other post-implementation developments) are relevant to show
(and do show) that the Union was not at the end of its negotiating rope
when Respondent declared impasse on November 18.
MIKE-SELL’S POTATO CHIP CO. 141
ment or a valid impasse, or the Union has agreed to changes. In
addition, Respondent must make its employees whole for any
loss of earnings and other benefits that resulted from its unilat-
eral and unlawful decision to, on or about November 19, im-
plement its full and final offers for the warehouse and driver
bargaining units at its facilities. Backpay for this violation shall
be computed in accordance with Ogle Protection Service, 183
NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest at the rate prescribed in New Horizons, 283 NLRB
1173 (1987), compounded daily as prescribed in Kentucky Riv-
er Medical Center, 356 NLRB 6 (2010). This includes reim-
bursing unit employees for any expenses resulting from Re-
spondent’s unlawful changes to their contractual benefits, as set
forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), affd. 661 F.2d 940 (9th Cir. 1981), with interest as set
forth in New Horizons and Kentucky River Medical Center,
supra. I further recommend that Respondent be ordered to
make all contributions to any fund established by the collective-
bargaining agreements with the Union which were in existence
on November 19, 2012, and which contributions the Respond-
ent would have made but for the unlawful unilateral changes, in
accordance with Merryweather Optical Co., 240 NLRB 1213,
1216 (1979).26
For all backpay required herein, Respondent shall file a re-
port with the Social Security Administration allocating backpay
to the appropriate calendar quarters. Respondent shall also
compensate bargaining unit employees for the adverse tax con-
sequences, if any, of receiving one or more lump-sum backpay
awards covering periods longer than 1 year, Latino Express,
Inc., 359 NLRB 518 (2012).

26 I am not persuaded by Respondent’s argument, based on the
Board’s decision in Dependable Maintenance Co., 276 NLRB 27
(1985), that even if the parties were not at impasse when Respondent
unilaterally implemented its full and final offers on November 19, any
damages should be cut off as of February 13, 2013, when the parties (in
Respondent’s view) did reach impasse. (See R. Posttrial Br. at 19–20.)
The Board’s decision in Dependable Maintenance is distinguishable
from this case. First, unlike the respondent in Dependable Mainte-
nance, there is no evidence that Respondent notified the Union that it
was declaring a new impasse (on February 13, 2013, or otherwise) and
reimplementing the terms of its full and final offers. Compare Depend-
able Maintenance Co., 276 NLRB at 30 (respondents notified the union
that they were at impasse and that accordingly respondents were reim-
plementing the terms of final offers that previously had been imple-
mented prematurely). Second, and perhaps more important, the Board
in Dependable Maintenance agreed that the respondents reasonably
declared a new impasse because the union in that case “failed and re-
fused to make any significant economic proposals which went to the
heart of the dispute between the parties.” Id. In this case, by contrast,
Respondent can make no such argument, because the evidentiary record
shows that the Union made multiple conciliatory offers between No-
vember 19, 2012, and March 20, 2013, and the parties brought in a
Federal mediator to facilitate negotiations on March 20, 2013, thereby
demonstrating that they were not at the end of their respective negotiat-
ing ropes. (See FOF, sec. II(D), supra (discussing, among other things,
the offers that the Union made between December 5, 2012, and March
20, 2013, regarding route sales driver commissions and employee
healthcare).)
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended27
ORDER
The Respondent, Mike-Sell’s Potato Chip Company, Dayton,
Ohio, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing to comply with the terms and conditions of em-
ployment that are set forth in the warehouse unit collective-
bargaining agreement that expired on October 26, 2012, and
failing to comply with the terms and conditions of employment
that are set forth in the drivers unit collective-bargaining
agreement that expired on November 17, 2012, until the parties
agree to a new contract or bargaining leads to a good-faith im-
passe.
(b) 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 effec-
tuate the policies of the Act.
(a) On request of the Union, restore, honor and continue the
terms of the collective-bargaining agreements with the ware-
house and drivers units that expired on October 26 and Novem-
ber 17, 2012, respectively, until the parties agree to a new con-
tract or bargaining leads to a good-faith impasse.
(b) Make employees in the warehouse and drivers bargaining
units whole for any and all loss of wages and other benefits
incurred as a result of Respondent’s unlawful unilateral imple-
mentation of its full and final offers on November 19, 2012,
with interest, as provided for in the remedy section of this deci-
sion.
(c) Make contributions, including any amounts due, to any
funds identified in the warehouse and drivers unit collective-
bargaining agreements that expired on October 26 and Novem-
ber 17, 2012, and which Respondent would have paid but for
the unlawful unilateral changes, as provided for in the remedy
section of this decision.
(d) Preserve and, within 14 days of a request, or such addi-
tional 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 rec-
ords, 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 amount of backpay
due under the terms of this Order.
(e) Within 14 days after service by the Region, post at its fa-
cility Dayton, Ohio, a copy of the attached notice marked “Ap-
pendix.”28 Copies of the notice, on forms provided by the Re-

27
If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
28 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gional Director for Region 9, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to 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 communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since November 17, 2012.
(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.
Dated, Washington, D.C. June 18, 2013
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 no-
tice.
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 fail to comply with the terms and conditions of
employment that are set forth in the warehouse unit collective-
bargaining agreement that expired on October 26, 2012, or fail
to comply with the terms and conditions of employment that
are set forth in the drivers unit collective-bargaining agreement
that expired on November 17, 2012, until the parties agree to a
new contract or bargaining leads to a good-faith impasse.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL, on request of the Union, restore, honor and contin-
ue the terms of the collective-bargaining agreements with the
warehouse and drivers units that expired on October 26 and
November 17, 2012, respectively, until the parties agree to a
new contract or bargaining leads to a good-faith impasse.
WE WILL make employees in the warehouse and drivers units
whole for any and all loss of wages and other benefits incurred
as a result of our unlawful unilateral implementation of our full
and final offers on November 19, 2012, with interest com-
pounded daily.
WE WILL make contributions, including any amounts due, to
any funds identified in the warehouse and drivers unit collec-
tive-bargaining agreements that expired on October 26 and
November 17, 2012, and which we would have paid but for the
unlawful unilateral changes to bargaining unit employees’
terms and conditions of employment.
WE WILL file a report with the Social Security Administration
allocating backpay to the appropriate quarters.
WE WILL compensate employees in the warehouse and driver
bargaining units for the adverse tax consequences, if any, of
receiving one or more lump-sum backpay awards covering
periods longer than 1 year.
MIKE-SELL’S POTATO CHIP CO.