MIKESELL'S SNACK FOOD COMPANY F/K/A MIKE-SELL'S POTATO CHIP COMPANY

National Labor Relations Board - Administrative Judge Opinions

Jul 25, 2017

09-CA-184215 (N.L.R.B. Jul. 25, 2017)

JD–55–17
Dayton, OH
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
MIKE-SELL’S POTATO CHIP COMPANY
and Case 09–CA–184215
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS (IBT), GENERAL TRUCK DRIVERS,
WAREHOUSEMEN, HELPERS, SALES, AND
SERVICE, AND CASINO EMPLOYEES,
TEAMSTERS LOCAL UNION NO. 957
Linda Finch, Esq.,
for the General Counsel.
Jennifer Asbrock, Esq.,
for the Respondent.
John R. Doll, Esq.,
for the Charging Party.
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. This case was tried in Cincinnati, Ohio,
from May 31 through June 2, 2017. The complaint, as amended, alleges that Mike-Sell’s Potato
Chip Company (Respondent) violated Section 8(a)(5) and (1) of the National Labor Relations
Act (Act) by: (1) failing or refusing to bargain with the International Brotherhood of Teamsters
(IBT), General Truck Drivers, Warehousemen, Helpers, Sales and Service, and Casino
Employees, Teamsters Local Union No. 957 (Union) about the decision to sell four company
sales routes to independent distributors; (2) failing to bargain with the Union prior to selling two
delivery vehicles to independent distributors; and (3) refusing to provide the Union with
requested information related to the sale of the company sales routes. Respondent denies the
alleged violations, contending its decision to sell the routes was not a mandatory subject of
bargaining. And, even if it had been, Respondent argues the Union waived its right to bargain
over the decision, which obviates the Union’s claimed need for the requested information.

1 Abbreviations in this decision are as follows: “Tr.” for transcript; “Jt. Exhs.” for Joint Exhibits; “GC Exh.”
for General Counsel’s Exhibit; “C.P. Exh. ” for Charging Party’s Exhibit; “R. Exh. ” for Respondent’s
Exhibit; “G.C. Br. _” for General Counsel’s brief; “C.P. Br. _” for Charging Party’s brief; and “R. Br.” for
Respondent’s brief.
JD–55–17
2
Respondent contends the allegation over the vehicle sales has no merit and is untimely
under Section 10(b) of the Act. Based upon the evidence and applicable law, I find the decision
to sell the four sales routes amounted to subcontracting of unit work, which is a mandatory
subject of bargaining. I further find that the Union did not waive its right to bargain, and that the
requested information was both relevant and necessary to the Union for its role as bargaining 5
representative. As for the sale of the delivery vehicles, the General Counsel’s post-hearing brief
does not address this allegation, and, thus, it appears to have been abandoned. In any event, I
find the allegation is barred under Section 10(b) of the Act, because the Union had constructive
notice of those sales more than 6 months prior to the filing of the amended charge.
II. STATEMENT OF THE CASE10
On September 14, 2016, the Union filed an unfair labor practice charge against
Respondent, docketed as Case 09–CA–184215, alleging violations of the Act related to the sale
of the routes. On December 9, 2016, the Union filed a first-amended charge in Case 09–CA–
184215. Based on its investigation, on March 17, 2017, the Regional Director for Region 9 of
the National Labor Relations Board (the Board) issued a complaint against Respondent alleging 15
that it violated Section 8(a)(5) and (1) of the Act when it failed to bargain with the Union
regarding the decision to sell the four routes and when it failed or refused to provide the Union
with the requested information. On March 27, 2017, Respondent filed its answer, and, on April
24, 2017, filed its amended answer, denying the alleged violations of the Act.
On May 31, 2017, prior to the start of the hearing, the Union filed a second-amended 20
charge in Case 09–CA–184215, adding an allegation that Respondent violated Section 8(a)(5)
and (1) of the Act since September 2016, when it unilaterally changed terms and conditions of
employment by entering into contracts to sell owner-operator equipment. At the conclusion of
its case-in-chief, the General Counsel orally moved to amend the complaint to include
allegations that Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally sold25
two delivery vehicles without bargaining with the Union. At the hearing, Respondent denied the
amended allegations, as both untimely and without merit. (Tr. 220–221; 1062–1064.)
At the hearing, all parties were afforded the right to call, examine, and cross-examine
witnesses, present any relevant documentary evidence, and argue their respective legal
positions orally. Respondent, Charging Party, and General Counsel filed post-hearing briefs, 30
which I have carefully considered. Accordingly, based upon the entire record, including the
post-hearing briefs and my observations of the credibility of the witnesses, I make the following2
35

2 On July 7, 2017, Respondent filed a motion to correct approximately 100 typographical errors in the
transcript. After reviewing the transcript, I grant Respondent’s unopposed motion.
JD–55–17
3
III. FINDINGS OF FACT3
A. Jurisdiction
Respondent is a corporation with an office and place of business in Dayton, Ohio
(Respondent’s facility), and has been engaged in the manufacture and distribution of snack 5
foods. In conducting its operations during the 12-month period ending March 15, 2017,
Respondent has purchased and received goods at its facility valued in excess of $50,000
directly from points outside the State of Ohio. Respondent admits, and I find, that it has been
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act,
and that the Union is a labor organization within the meaning of Section 2(5) of the Act. Based 10
on the foregoing, I find this dispute affects commerce and that the Board has jurisdiction of this
case, pursuant to Section 10(a) of the Act.
B. Collective-Bargaining Relationship
For over thirty years, Respondent has recognized the Union as the exclusive collective-
bargaining representative of the following appropriate unit of Respondent’s employees, within 15
the meanings of Sections 9(a) and (b) of the Act:
[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 20
by [Respondent], but excluding all supervisors, security guards, and office
clerical employees employed by [Respondent].
Respondent’s recognition of the Union as the collective-bargaining representative of the
above unit has been embodied in a number of successive collective-bargaining agreements, 25
with the most recent agreement being in effect from November 17, 2008 to November 17,
2012.4
The following are provisions contained in the parties’ most-recent collective-bargaining
agreement:30
ARTICLE VIII-B
ROUTE BIDDING
Section 5 In the event that it becomes necessary to eliminate a route or 35
combine one route with another, employees affected shall have the right to
displace a less senior employee. However, displacements shall be restricted to
the employees’ service location.
40

3 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.
4 The Union also is the exclusive bargaining representative of Respondent’s warehouse employees,
which are in separate unit and covered by a separate collective-bargaining agreement.
JD–55–17
4
ARTICLE XIV
OWNER-DRIVER EQUIPMENT
Section 1 The Company agrees that it will not employ or contract for owner-
driver equipment, and that the Company shall not rent, lease or sublease 5
equipment to members of the Union or any other individual, firm, cooperation or
partnership which has the effect of defeating the terms and provisions of this
Agreement.
ARTICLE XIX10
MANAGEMENTS RIGHTS
Section 1 Management of the plant and the direction of the working force,
including the right to hire, promote, suspend for just cause, disciplining for just
cause, discharge for just cause, transfer employees and to establish new job 15
classifications, to relieve employees of duty because of lack of work or economic
reasons, or other reasons beyond the control of the company, the right to
improve manufacturing methods, operations and conditions and distribution of its
products, the right to maintain discipline and efficiency of employees is
exclusively reserved to the company. It is understood however, that this authority 20
shall not be used by the company for the purpose of discrimination against any
employee because of their membership in the union, and that no provision of this
paragraph shall in any way interfere with, abrogate or be in conflict with any
rights conferred upon the union or its members by any other clause contained in
this agreement, all of which are subject to the grievance procedure.25
(Jt. Exh. 1.)
C. Background
30
1. Respondent’s Operations
Respondent is headquartered in Dayton, Ohio, and has two production facilities: one in
Dayton, where it manufactures its potato chips, and one in Indianapolis, Indiana, where it
manufactures its extruded corn products. Respondent currently has one distribution center, 35
located in Dayton, Ohio.5 Respondent distributes its snack products to Ohio, Indiana, Illinois,
Kentucky, Pennsylvania, and Michigan. (Tr. 232–233.)
Respondent has two distribution methods: direct store delivery and warehouse or direct
sales. The direct store delivery method is where a salesperson travels around to retail 40
customers within a geographic territory to take orders and deliver products. The warehouse or
direct sales method is where a retailer (e.g., Big Lots) purchases and picks up products from
Respondent and then distributes the products out to the retailer’s individual stores. (Tr, 233–
234.)
45

5 Prior to 2012, Respondent had six distribution centers in Ohio (Cincinnati, Columbus, Sabina,
Springfield, Greenville, and Dayton).
JD–55–17
5
Direct store delivery is handled by route sales drivers and independent distributors. Route
sales drivers are bargaining unit employees represented by the Union. As the title indicates,
these drivers are assigned a route and are responsible for servicing the customers (e.g.,
grocery stores, retail stores, gas stations, restaurants, etc.) on that assigned route. Their duties
include reviewing orders, loading their company-owned trucks with product, traveling to 5
customers, stocking customer shelves, rotating unsold product, performing point-of-sale
marketing, and removing expired product. The drivers track orders, deliveries, and sales using
a company-owned handheld electronic device. Route sales drivers are paid a commission
based on the type and amount of product they sell, as well as additional benefits (e.g., health
and welfare benefits, pension, leave, etc.) per the collective-bargaining agreement. The routes10
can vary as far as number of customers, size of orders, geographic proximity, and sales volume.
Routes are assigned to drivers through a seniority-based bidding system.
Independent distributors are individuals or entities that enter into agreements with
Respondent for the primary right to distribute Respondent’s products within a defined15
geographic territory.6 Independent distributors perform the same core tasks as route sales
drivers as far as servicing the customers, but, unlike the route sales drivers, they assume the
costs and liabilities associated with purchasing, storing, transporting, and selling those products.
For example, in addition to paying for the products they sell, distributors are responsible for
acquiring, maintaining, and insuring their own delivery vehicle(s), storage location(s), and other 20
tools and equipment. Independent distributors are paid a contractually-agreed upon margin
based on the type and amount of product they sell, but do not receive any additional pay or
benefits. The specific terms of the arrangement between Respondent and distributors are set
forth in the individual independent distributor agreements.7

6 For the purposes of this case, territory and route are used interchangeably. (R. Br. 3, fn. 4.)
7 The following are some of the terms and conditions contained in the individual distributor agreements.
The agreement affords the independent distributor the nonexclusive right to buy, sell, and distribute
Respondent’s products in the distributor’s territory. The distributor agrees to use its best efforts to sell,
promote the sale of, and distribute the products to retailers located within the territory. If there is any
dispute as to the territory boundaries, the final decision is made by Respondent as to which distributor is
to service the territory in question, without recourse from the distributors involved. Respondent agrees to
sell and deliver to the distributor, in the quantities required for the distributor’s wholesale business, and
the distributor is expected to sell the product line available. The distributor understands and agrees that
Respondent may in its sole discretion, at least once annually, adjust upward or downward any distributor
margins, as long as the Respondent provides the distributor with 30-days’ written notice. The distributor is
required to adhere to the delivery and merchandise standards prescribed by its customers and by
Respondent, and to submit all invoices to the Respondent, without exception, within the timeframe set
forth in the agreement. The distributor agrees to maintain sufficient inventory of products to meet the
needs of the retailers in the distributor’s territory. The distributor agrees to indemnify and hold
Respondent harmless for any and all losses, damages, and expenses in any way connected with
conducting the distributor’s business. To that end, the distributor agrees to maintain liability insurance at
the level set forth within the agreement. The distributor agrees to accept full responsibility for, and to pay,
all of the costs and expenses incurred by it, or any agent, employee, or representative authorized to act
on the distributor's behalf in conducting its business. Respondent and the distributor agree that their
relationship is that of a seller and independent buyer, and the distributor shall remain, while the
agreement is in effect, an independent contractor whose own judgment and sole discretion shall control
activity and movement, the means and methods of distribution, and all other matters pertaining to its
business operations. Respondent has no right to require the distributor to work any specific place or time
for any purpose, to devote any particular time or hours to the business, to follow any specified schedule
JD–55–17
6
In the last several years, Respondent has experienced a steady decline in its overall net
worth ($18 million in 1999, to $5 million currently). (Tr. 235–236). Phil Kazer, Respondent’s
Executive Vice President of Sales and Marketing, attributed this decline, in part, to larger
competitors, such as Frito-Lay, being better positioned because of their size to market, promote, 5
and aggressively price their products; and to grocery and retail stores, such as Kroger, Meijer,
and Walmart, increasingly selling snack products under their own private labels—both reducing
the retail space available to Respondent to sell its products. Another reason Kazer cited for the
decline in net worth is the annual losses Respondent has experienced in its company route
sales division (totaling $9 million in losses from 2006 to 2016). (Tr. 243–244). Kazer opined that10
by using company route sales drivers Respondent remains responsible for the costs, both labor
and nonlabor, including, but not limited to, the storing, transporting, and stocking of product, as
well as the cost of any unsold product. (Tr. 245–246.) Kazer testified that by selling routes to
independent distributors, Respondent transfers this risk of loss from the company onto them.
15
Kazer testified that in this current changing environment, Respondent believes its
greatest opportunity for growth is to move away from distributing and focus more on
manufacturing and branding quality products. To that end, over the last several years,
Respondent has been selling company delivery routes to independent distributors. In around
2012, Respondent had approximately 70 company driver routes. Today, it has approximately 20
12 routes. In around 2012, there were approximately 100 routes owned by independent
distributors. Today, there are over 170. (Tr. 246–247.)
2. 2012 Arbitration Award
25
In October 2011, Respondent informed the Union that it intended to sell a remote sales
route in Marion, Ohio to an independent distributor (Buckeye Distributing). Respondent was
selling the route because, despite various efforts to make it profitable, it continued to lose
approximately $1,100 per week. Respondent informed the Union it intended to sell the route
within the next 3 or 4 weeks, and that per Article VIII-B, Section 5 of the parties’ collective-30
bargaining agreement, the affected route sales driver (Angie Watson) would be allowed to use
her seniority to bump into another route. The Union filed a grievance over the sale and the
matter went to arbitration.8 The Union argued the sale amounted to unlawful subcontracting of
unit work not permitted under the parties’ agreement. Respondent countered that it was not
subcontracting, but rather a change in the Company’s distribution methods to reallocate risk of 35
unprofitable routes. Respondent argued it was permitted under the management-rights clause

routes, to confine or extend business to any particular retail customer, to use any specified techniques for
soliciting sales or displaying merchandise, to employ or refrain from employing helpers or substitutes, to
make reports to the company, to keep records other than those necessary for invoicing, etc. Respondent
may, from time to time, in exercise of its sole judgment, increase or reduce the size of, replace or
transfer/reassign any retail outlet to any other distributor, or otherwise change the distributor’s territory,
but Respondent will notify the distributor that it is considering such a revision and consult with the
distributor relative to the changes that are being considered. Either party may terminate this agreement,
at will, with or without cause, by giving 30 days’ written notice to the other party. (Jt. Exh. 12.)
8 The arbitration decision refers to instances in 2009, 2010, and 2011--during the life of the collective-
bargaining agreement--in which Respondent sold routes serviced by unit drivers to independent
distributors in which Respondent notified the Union of the decision, and the Union did not object. (Jt. Exh.
1.).
JD–55–17
7
(Art. XIX), and was consistent with prior sales of routes that occurred without the Union’s
objection. On September 26, 2012, Arbitrator Michael Paolucci issued his decision. He found
that this was not a typical subcontracting case, but rather a change in the methodology of how
Respondent operated its business—a change that involved the transfer of an entire business
unit (the route), including its expenses and potential revenue, to a third party. Arbitrator 5
Paolucci held, in pertinent part:
Absent clear contract language, it must be found that the management
right to control distribution, and determine profitability allows the action of the
Company. The language that the Union cites, where the parties contemplated 10
situations where it “becomes necessary to eliminate a route or combined one
with another” in Article VIII-B, must be found as supportive of this decision. The
“elimination” of a route is fairly interpreted as either being elimination due to the
ending or selling of a route. It would not be logical to only make the language
applicable to a situation where the Company determines that the lack of 15
profitability only necessitates the complete withdrawal from a market. The
elimination provision must be given a broader interpretation and it must apply
where the lack of profitability could result in either the complete withdrawal from a
market, or the selling of a route thus making the route eliminated from the
Company’s control. This broader meeting is justified based on the Company’s 20
business practices as currently configured. Since it has over 100 distribution
partners and only 80 [route sales drivers] then it follows that the parties intended
the elimination provision to cover all transfers of the work from the bargaining unit
member to a third party, or to the ending of the work, while the other part of the
provision covers other situations where the work is merged with another route.25
To find otherwise would mean that the parties knew enough to address
situations where a route was ended completely when the Company would
withdraw from a market; and they knew enough to address situations when
routes were merged; but that they lacked enough foresight to understand that 30
routes could be sold and a route could be eliminated in that fashion. This does
not follow since the Company has had third-party distributors as part of the
business for some time. It is a more reasonable interpretation that they intended
the two (2) instances in the provision—i.e., “elimination” or “merger” to cover all
expected situations.35
Based on the foregoing, it must be found that the language supports the
analysis above, and expressly addresses the situation of the Grievant. Her work
was eliminated through the sale of the route and she was given the opportunity to
bump. Her work was not subcontracted, it was unprofitable and the business was 40
sold to third party. Based on this analysis it must be found that the company did
not violate the agreement.
(R Exh. 2, pp. 20–21)
45
3. Collective-Bargaining Negotiations and Subsequent Route Sales
The parties’ collective-bargaining agreement expired on November 17, 2012. On
October 10, 2012, the parties met for their first bargaining session over a successor agreement.
JD–55–17
8
At the start of this session, Respondent informed the Union that it intended to sell its 29 sales
routes in Columbus, Sabina, and Cincinnati, Ohio, effective November 18, 2012. (Tr. 302–303.)
Respondent sold these routes to independent distributor Keystone Distributing, Ltd./ Buckeye
Distributing Company because of Respondent’s “dire” financial situation. The Union never
demanded to bargain over the decision to sell these routes, but it did request to bargain over the 5
effects. (Tr. 305.) The parties met for effects bargaining and later entered into an agreement in
which Respondent would provide severance or modified bumping rights to the affected
bargaining unit drivers.9 (Tr. 307.) The Union never filed a grievance or an unfair labor practice
charge regarding the sale of these routes.
10
On November 18, 2012, Respondent unilaterally implemented its last, best, and final
offers to the Union, claiming the parties had reached an impasse. The Union filed an unfair
labor practice charge regarding the implementation, and a hearing was held before
Administrative Law Judge Geoffrey Carter on April 15–17, 2013.
On April 24, 2013, prior to a contract negotiation session, Respondent informed the 15
Union that it intended to sell five company sales routes in Greenville, Ohio to independent
distributor Earl Gaudio & Son, Inc., effective June 2013. The Union again did not request to
bargain over the decision, but it did request to bargain over the effects. (Tr. 316–318.) The
parties later met and the Union sought a similar arrangement to the one the parties reached
when Respondent sold its routes in Columbus, Sabina, and Cincinnati. Respondent, however,20
was unwilling to provide severance or bumping rights to four of the five affected employees
because the drivers were, in Respondent’s opinion, low performers. But Respondent did agree
to pay severance to the fifth affected driver. The Union never filed a grievance or an unfair labor
practice charge regarding the sale of these Greenville, Ohio routes. (Tr. 320–321.)
25
About a month later, Gaudio’s parent company filed for bankruptcy. Per the terms
independent distributor agreement, the Greenville routes reverted back to Respondent
immediately.10 In July 2013, Respondent resold these Greenville routes to independent
distributor Helm Distributing Company. Respondent did not provide the Union with notice that
the routes had reverted back, or that they had been resold to Helms Distributing Company. (Tr. 30
327–331.)
On June 18, 2013, Administrative Law Judge Geoffrey Carter issued his decision finding
that Respondent violated Section 8(a)(5) and (1) of the Act when it unilaterally implemented its
November 18, 2012 offers to the Union without first bargaining to a good-faith impasse. 35
Administrative Law Judge Carter found the parties were not at impasse at the time of the
implementation through March 2013, in part, because the parties continued to meet and the
Union continued to make conciliatory offers toward an agreement. See Mike-Sell’s Potato Chip
Co., JD–40–13.11

9 Art. VIII-B, Sec. 5 of the collective-bargaining agreement allowed for employees to bump into other
routes within their service location. However, in this case, Respondent had sold all of the routes within
the employees’ service location, so there were no other routes that they could bump into. As a result, the
parties agreed that the affected drivers could bump into routes in other service locations. (Tr. 307.)
10 There is no evidence introduced regarding who serviced these routes between when they reverted
back to Respondent and when they were sold to Helm Distributing. (Tr. 703.)
11 On June 13, 2013, Respondent unilaterally implemented a revised final offer. (R Exh. 3). There has
been no finding, one way or another, whether the parties had reached a good-faith impasse as of the time
Respondent implemented its revised final offer in June 2013. The parties agree that the issue of impasse
JD–55–17
9
On July 17, 2013, Respondent provided the Union with written notification that it was
selling its (four) Springfield routes to an independent distributor (Helm Distributing Company),
effective August 17, 2013. (R. Exh. 8.) (Tr. 338–340.) The Union again did not make a demand
to bargain over the decision to sell the routes, but it did request to bargain over the effects.5
Respondent and the Union did meet, and the parties ultimately agreed to provide severance or
bumping rights to the affected bargaining unit drivers. (Tr. 345.) The Union did not file a
grievance or an unfair labor practice charge over the sale of the Springfield routes. (Tr. 346.)
At some point in 2014, Buckeye Distributing Company filed for bankruptcy liquidation, 10
and all 29 sales routes it had acquired in Columbus, Sabina, and Cincinnati, Ohio reverted back
to Respondent, per the terms of the independent distributor agreement. (Tr. 358.) Prior to
Buckeye filing for bankruptcy, Kazer testified that he was in discussions with Snyder Lance, the
second largest snack food manufacturer and distributor in the country, about acquiring the
routes at issue “because of the job that Buckeye was doing.” (Tr. 358–359.) Kazer did not 15
provide any more information as to what he meant by that statement. Respondent eventually
transferred the 29 routes to Snyder Lance after Buckeye Distributing Company filed for
bankruptcy.12 There is no evidence Respondent notified the Union that these routes had
reverted back, or that they were later transferred to Snyder Lance.
20
In November or December 2015, Helms Distributing Company also filed for bankruptcy,
and the Greenville and Springfield routes Helm Distributing Company had acquired reverted
back to Respondent. On December 15, 2015, Respondent resold those routes to an
independent distributor, Big TMT Enterprize, LLC.13 Respondent did not provide the Union with
notification that the routes had reverted back, or that they were resold to Big TMT Enterprize.14 25

will be addressed in the compliance proceeding related to Respondent’s unlawful unilateral
implementation of its November 18, 2012 final offer, and, therefore, it was not an issue litigated in this
proceeding.
On January 15, 2014, the Board affirmed Administrative Law Judge Carter’s decision. See Mike-
Sell’s Potato Chip Co., 360 NLRB 131 (2014). Respondent appealed the Board’s decision to the D.C.
Circuit Court of Appeals, and the Board cross-petitioned for enforcement. On December 11, 2015, the
Court of Appeals enforced the Board’s order. Mike-Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318 (D.C.
Cir. 2015). This enforced Board order is the subject of the previously mentioned compliance proceeding.
12 The former Buckeye Distributing Company employees continued to service the routes between when
they revered back to Respondent and when they were sold to Snyder Lance. (Tr. 701.) There is no other
evidence in the record regarding the terms or conditions associated with having these individuals
continue to service the routes during this period of time.
13 The former Helm Distributing Company employees continued to service the routes between when they
revered back to Respondent and when they were sold to Big TMT Enterprize, LLC. (Tr. 700). There is
no other evidence in the record regarding the terms or conditions associated with having these individuals
continue to service the routes during this period of time.
14 Respondent contends that the Union, through its steward Richard Vance, should have been aware that
these routes were resold because Big TMT Enterprize temporarily worked out of Respondent’s Dayton
distribution center where Vance and other bargaining unit employees worked, and Vance and the others
likely would have seen Big TMT Enterprize employees loading their trucks. (Tr. 356–357). I find,
however, Respondent failed to present sufficient evidence to establish the Union had actual or
constructive notice.
JD–55–17
10
The parties met for bargaining over a successor agreement from October 2012 through
June 2014. Thereafter, the parties met to discuss a global settlement. Those discussions
continued through 2016. From October 2012 through June 2014, the parties met approximately
14 times. In those negotiations, the parties made proposals regarding the language in Art. VIII-
B, Section 5, addressing bidding. Respondent sought to modify the language to: “In the event 5
that it becomes necessary to terminate or sell a route or combine one with another, the
displaced employee or employees who lose their routes due to this combination or elimination
may use their seniority to bump any less senior employee within their currently assigned
location.” (R. Exh. 3, p. 9.) The Union sought to maintain the existing language. Respondent
eventually agreed to maintain the existing language because the Union stated no change was 10
needed. (Tr. 273–275.) In November 2016, as part of the global settlement discussions, the
Union proposed inserting into the management-rights clause the following language:
“Notwithstanding anything contained in this Agreement to the contrary, the Company shall not
sell, transfer, or otherwise assign any current routes, in one transaction or series of
transactions, to any other person or entity without the agreement of the Union.” (R. Exh. 4.) 15
D. Alleged Unfair Labor Practices
1. April 27, 2016 Notification about Possible Sales and Resulting Grievance
20
On April 27, 2016, Respondent sent the Union a letter stating that in accordance with
Respondent’s “rights” as recognized by Arbitrator Paolucci in his decision in the Watson matter,
Respondent was seriously considering the elimination of three Dayton, Ohio sales routes by
selling them to independent distributors. (Jt. Exh. 3.) The letter stated that, although the specific
routes ultimately eliminated will depend on the terms negotiated with the independent 25
distributor(s), it is possible that any of the current routes may be affected, and that a final
decision would be made within 3–6 months. Respondent noted that if it ultimately decided to
sell one or more of these routes to independent distributors, it would provide the Union with
timely notice of its decision, bargain over the effects of the route elimination(s), and that affected
drivers would have seniority-based bumping rights. That same date, Respondent sent all 30
employees a letter informing them of its plan to sell Dayton sales routes to independent
distributors, and if employees were interested in becoming a distributor, they should contact the
Company. (Jt. Exh. 2.) On May 6, 2016, the Union, through steward Richard Vance, filed a
grievance over Respondent’s announced intent to sell these three routes. (Jt. Exh. 4.) The
grievance went through the various steps, and Respondent denied violating any provisions of 35
the parties’ expired agreement.
The parties had a third-step grievance meeting in June 2016. At this meeting, the Union
expressed frustration that Respondent sent a letter to employees soliciting them to become
distributors. (Tr. 374.) The Union also requested that Respondent not select the more senior 40
routes to sell. Respondent informed the Union that all routes were under consideration. (Tr.
375.) Respondent stated that it had the prerogative to sell the routes under the Paolucci
decision. (Tr. 151–152.) The Union did not demand to bargain over the sale of the routes
because no routes had been selected at that time. (Tr. 375.)
45
JD–55–17
11
2. Notification Regarding the Sale of Route 102
On July 11, 2016, Respondent sent the Union a letter stating that, in accordance with its
“rights” as recognized by Arbitrator Paolucci in his decision in the Watson matter, Respondent
will be selling Route 102, Xenia territory, effective July 24, 2016. (Jt. Exh. 5.) The unit driver 5
assigned to the route had announced his retirement. The Union did not file a new grievance
after receiving this notification. Vance testified he believed that his May 6, 2016 grievance
covered this particular sale. The Union never demanded to bargain over this sale or its effects.
The route was eventually sold to Big TMT Enterprize, LLC. (Tr. 375.)
10
3. Notification Regarding the Sales of Routes 104 and 122
On August 29, 2016, Respondent sent the Union a letter stating that in accordance with
its “rights” as recognized by Arbitrator Paolucci in his decision in the Watson matter,
Respondent will be eliminating two positions through the sale of Route 104 and Route 122, 15
effective September 4, 2016. (Jt. Exh. 6.) Respondent noted that the affected drivers (Gerald
Shimmer #122 and Jerry Lake #104) would have an opportunity to rebid on September 1, 2016.
On September 29, 2016, the Union, through steward Richard Vance, filed a grievance regarding
the sale of these two routes. The parties met on this grievance at the various steps, and
Respondent again denied committing any violations of the parties expired agreement. 20
On around August 30, 2016, Gerald Shimmer, one of the affected drivers, informed
Vance that he was told that his delivery vehicle was being sold, and that he (Shimmer) needed
to unload his truck and use a spare vehicle for the last few days of his route. (Tr. 114–115.)
25
The two routes were eventually sold to BLM Distributing, LLC. (Tr. 382.) The owner of
BLM Distributing is Lisa Krupp. Krupp is a former unit driver that provided relief coverage when
the other unit drivers were on vacation or leave.
4. Union’s Demand to Bargain and Information Request30
In addition to the grievance, on August 31, 2016, the Union, through Business
Representative Alan Weeks, sent Respondent a letter disputing Respondent’s claim that the
Paolucci arbitration decision gave it the right to sell Routes 104 and 122. (Jt. Exh. 8.)
Specifically, the Union argued that Arbitrator Paolucci found no obligation to bargain because of35
the demonstrated unprofitability of the Watson route, the fact that the Watson route was far
away from the Columbus, Ohio distribution center increasing the cost of providing product to the
route, and the fact that similar unprofitable routes have been sold in the past. In contrast, the
Union argued that no information has been provided to the Union showing that Routes 104 and
122 were unprofitable; the two routes at issue are within the Dayton, Ohio area and providing 40
product did not cost more than providing product to any other route out of the Dayton
distribution center; and Respondent has not previously sold a route within the Dayton service
area. Based on these factors, the Union demanded Respondent meet and bargain over the
decision to sell Routes 104 and 122. In order to be prepared for such bargaining, the Union
requested the following information: 45
1. All documents that demonstrate the profitability of all of the Company’s routes
for the period from September 1, 2014 through August 1, 2016 so
JD–55–17
12
comparison can be made as to the profitability of all the routes on Route No.
104 and Route No. 122.
2. A copy of the agreement between Mike-Sell’s and the entity to whom Route
No. 104 and Route No. 122 is scheduled to be sold.
3. A description of how Mike-Sell’s product is to be received by the entity to 5
whom [R]oute No. 104 and Route No. 122 is scheduled to be sold.
4. A copy of all correspondence, including electronic correspondence, between
Mike-Sell’s and the entity to whom Route No. 104 and Route No. 122 is
scheduled to be sold from the date of the first such correspondence until
August 29, 2016.10
The Union concluded the letter by requesting that Respondent delay the sale of the two routes
until the Union had an opportunity to review the requested information and the parties met for
bargaining. (Jt. Exh. 8.)
15
On September 12, 2016, Respondent sent a reply to the Union’s August 31, 2016 letter.
(Jt. Exh. 9.) In its reply letter, Respondent disagreed with the Union’s interpretation of the
Paolucci arbitration decision, arguing that the Union was reading the decision too narrowly,
particularly that it only applied to the sale of unprofitable routes. Respondent noted that the
Arbitrator “specifically rejected the Union’s argument ‘that the Company did this simply because 20
the costs were too high,’ finding instead that ‘[w]here an entire business unit is transferred, the
factors justifying the change are much more numerous than a simple measure of cost savings.’”
In short, Respondent argued that the Arbitrator “recognized that [t]he Company has chosen a
different manner of operating its business, and [a]bsent clear contract language, it must be
found that the management right to control distribution, and determine profitability, allows the 25
[Company to sell its routes to independent distributors without bargaining with the Union.]”
(internal quotations omitted). Respondent went on to say that it exercised its “inherent
management right” to determine methods of distribution by selling Routes 104 and 122, just as it
did by selling Route 102 in July 2016. The last paragraph of Respondent’s letter states:
30
Because Arbitrator Paolucci’s award makes it clear that Mike-Sells has the
management right to change distribution methods in accordance with strategic
objectives, we respectfully decline to bargain over our decision to sell Company
routes; to delay the sale of Routes 104 and 102 pending such decisional
bargaining; or to respond to information request designated specifically for the 35
purpose of engaging in such decisional bargaining.
In a footnote, Respondent stated it remained willing to bargain over the effects of the
route eliminations, if any, and remained willing to provide relevant information for that purpose.
But because the arbitration award confirmed that Respondent had the managerial discretion to 40
unilaterally sell company routes, it is not a mandatory subject of bargaining; therefore,
Respondent did not believe that the Union’s August 31 information request (which was made for
the purpose of decisional bargaining) was presumptively relevant or necessary for the Union to
perform its statutory duties. Respondent did not provide the Union with the information it
requested. (Tr. 475.) 45
JD–55–17
13
5. Notification of Sale of Route 131 and Resulting Grievance
Also, on September 12, 2016, Respondent sent the Union a separate letter stating that
in accordance with its “rights” as recognized by Arbitrator Paolucci in his decision in the Watson
matter, Respondent will be selling Route 131, effective September 17, 2016. (Jt. Exh. 10.) On 5
that same date, the Union, through steward Richard Vance, filed a grievance regarding the sale
of Route 131. The route was eventually sold to Big TMT Enterprize, LLC. The parties later met
on these and other grievances in January 2017, and Respondent denied any violations of the
parties’ expired collective-bargaining agreement.15
10
6. Sale of Delivery Vehicles to Independent Distributors
On September 4, 2016, Respondent sold a delivery truck to independent distributor Lisa
Krupp’s company BLM Distributing LLC. On September 11, 2016, Respondent sold a delivery
truck to independent distributor Charles Morris’s company Big TMT Enterprize, LLC. (Tr. 222.) 15
There was no grievance filed regarding the sale of the vehicles.
7. Costs and Revenue Associated with Sales
At the hearing, Kazer estimated that Respondent recognized approximately $229,000 in 20
total savings in labor costs from selling the routes (i.e., $152,000 in commissions, $35,000 in
pension contributions, $14,000 in vacation pay, holiday pay and sick day pay, $13,000 in
employment taxes, $7,000 in healthcare costs, $6,000 in workers’ compensation payments, and
$1,100 in supplemental life insurance payments). He estimated approximately $195,000 worth
of nonlabor savings, including the elimination two nonunion positions; the costs associated with 25
maintaining and insuring the four vehicles that were sold; costs of stale products; etc. Kazer
also identified several intangible cost savings. He also identified Respondent received $74,000
from selling the routes and $34,000 from selling the trucks to the independent distributors, and
$18,000 in inventory liquidation. However, Kazer noted that the sale of the four routes meant
paying the independent distributors $324,000 in distributor margins. (Tr. 538–542.)30
IV. CONTENTIONS OF THE PARTIES
The General Counsel contends that Respondent’s decisions to sell the four company
routes at issue to independent distributors amounts to subcontracting of bargaining unit work, 35
which is a mandatory subject of bargaining, and Respondent’s failure or refusal to bargain with
the Union over those decisions violated Section 8(a)(5) and (1) of the Act. The General Counsel
also contends that the information the Union requested from Respondent on August 31, 2016,
was relevant and necessary for the Union’s role as collective-bargaining representative, and
that Respondent’s failure or refusal to provide that requested information violated Section 40
8(a)(5) and (1) of the Act.

15 Respondent participates in the Union’s Central States Pension Fund. As a participant in this Fund,
Respondent is subject to a withdrawal liability of $20 million if the number of contribution based units
(CBUs) drops below a certain amount. Kazer testified that Respondent has not sold more routes out of
concern that further sales would trigger the withdrawal liability. (Tr. 579.)
JD–55–17
14
Respondent denies the alleged violations. Respondent contends selling the company
sales routes was not a mandatory subject of bargaining because it was part of Respondent’s
decision to fundamentally change its business model by discontinuing these discrete business
units. Moreover, even if the sales were a mandatory subject of bargaining, Respondent
contends that the Union waived its right to bargain. And because there was obligation to 5
bargain over the sales, Respondent argues it had no obligation to provide the Union with the
requested information.
V. LEGAL ANALYSIS
10
A. Decisions to Sell the Routes Were Mandatory Subjects of Bargaining.
Section 8(d) of the Act imposes an obligation on an employer to bargain with respect to
wages, hours, and other terms and conditions of employment. Section 8(a)(5) makes it an
unfair labor practice for an employer to make unilateral changes to these mandatory subjects 15
without first providing the union with notice and an opportunity to bargain. NLRB v. Katz, 369
U.S. 736, 743 (1962). The issue, therefore, is whether Respondent’s decision to sell the four
company routes at issue amounted to a mandatory subject of bargaining.
In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215 (1964), the Supreme 20
Court found that an employer’s subcontracting of maintenance work to a third party was a
mandatory subject of bargaining, holding that:
The Company's decision to contract out the maintenance work did not alter the
Company's basic operation. The maintenance work still had to be performed in 25
the plant. No capital investment was contemplated; the Company merely
replaced existing employees with those of an independent contractor to do the
same work under similar conditions of employment. Therefore, to require the
employer to bargain about the matter would not significantly abridge his freedom
to manage the business.30
379 U.S. at 213–214.
In First National Maintenance Corp. v, NLRB, 452 U.S. 666 (1981), the Supreme Court
held that not all decisions that result in the displacement of employees require bargaining. In
that case, the employer provided maintenance and housekeeping services for commercial 35
establishments, including a nursing home. Under the service contract, the home reimbursed the
employer for its labor costs and paid a fixed management fee. The employer terminated its
contract with the home over a dispute about the management fee, which led it to discharge its
employees working there without bargaining with the union. In deciding the matter, the Court
divided management decisions into three categories for bargaining purposes. First, “[s]ome 40
management decisions, such as choice of advertising and promotion, product type and design,
and financing arrangements, have only an indirect and attenuated impact on the employment
relationship” and are thus not mandatory subjects of bargaining. Second, “[o]ther management
decisions, such as the order of succession of layoffs and recalls, production quotas, and work
rules, are almost exclusively ‘an aspect of the relationship’ between employer and employee” 45
and are thus mandatory subjects. 452 U.S. at 677. Third, a decision that had a direct impact on
employment because it involves the elimination of jobs, but which had as its focus only the
economic profitability of the contract, a matter wholly apart from the employment relationship.
The Court stated that the employer’s decision to terminate its contract with the home involved a
JD–55–17
15
change in the scope and direction of the enterprise and was akin to a decision whether to be in
business at all, “not in [itself] primarily about conditions of employment.” 452 U.S. at 677,
quoting from Fibreboard, 379 U.S. 203, at 223 (1964) (Stewart, J. concurring). In determining
whether there is a bargaining obligation in this third category, the Court set forth the following
test:5
[I]n view of an employer's need for unencumbered decision making, bargaining
over management's decisions that have a substantial impact on the continued
availability of employment should be required only if the benefit, for labor-
management relations and the collective-bargaining process, outweighs the 10
burden placed on the conduct of the business.
First National Maintenance, 452 U.S. at 678–679.
The Court noted that the employer had no intention of replacing the discharged 15
employees or to moving the operation elsewhere, that the sole purpose for the closing was to
reduce economic loss, and that the employer’s decision was based on a factor over which the
union had no control or authority. As such, the employer’s only obligation was to bargain over
the effects of the decision. The Court, however, was careful to clarify that its holding was limited
to the particular situation presented and was not intended to cover other types of management 20
decisions, such as “plant relocations, sales, other kinds of subcontracting, automation, etc.,
which are to be considered on their particular facts.” Id. at 686 fn. 22.
In Bob's Big Boy Family Restaurants, 264 NLRB 1369, 1370 (1982), the dispute was
over whether a change should be characterized as a mandatory subcontracting decision under 25
Fibreboard, or as a non-mandatory partial closing under First National Maintenance. In that
case, the employer operated a commissary where it prepared and distributed food products to a
restaurant chain. Without bargaining with the union, the employer decided to discontinue its
shrimp processing operation and subcontract that work to a third party, which resulted in the
termination of 12 employees. The Board, in a 3-2 decision, held:30
The distinction between subcontracting and partial closing, however, is not
always readily apparent. Thus, it is incumbent on the Board to review the
particular facts presented in each case to determine whether the employer's
action involves an aspect of the employer/employee relationship that is amenable 35
to resolution through bargaining with the union since it involves issues
“particularly suitable for resolution within the collective bargaining framework.” If
so, Respondent will be required to bargain over its decision. If, however, the
employer action is one that is not suitable for resolution through collective
bargaining because it represents “a significant change in operations,” or a 40
decision lying at “the very core of entrepreneurial control,” the decision will not
fall within the scope of the employer's mandatory bargaining obligation. A
determination of the suitability to collective bargaining, of course, requires a
case-by-case analysis of such factors as the nature of the employer's business
before and after the action taken, the extent of capital expenditures, the bases for 45
the action, and, in general, the ability of the union to engage in meaningful
bargaining in view of the employer's situation and objectives.
Id. at 1370 (internal citations omitted).
JD–55–17
16
The Board concluded the employer subcontracted the work of shrimp processing, rather
than partially closed its food preparation business, because there was no major shift in the
direction of employer’s business. The Board found that, both before and after the subcontract,
the employer engaged in the business of providing prepared foodstuffs to its various stores, and 5
it appeared to continue supplying processed shrimp to its constituent restaurants. The only
difference is that the processing work was performed by the third-party’s employees pursuant to
the subcontract rather than by employer’s employees. Accordingly, the Board held that the
nature and direction of the employer’s business was not substantially altered by the subcontract.
10
The Board also observed that the closure did not constitute a major capital modification.
Although the corporation did sell $30,000 worth of equipment to the third party, this was not so
substantial a change as to remove the decision from mandatory bargaining. Finally, the Board
held that since escalating costs and proper size grading of the shrimp were the primary reasons
for the employer’s decision to subcontract, the employer’s concerns were of the type 15
traditionally suitable for the collective bargaining process. Thus, the Board found its decision
was consistent with First National Maintenance as well as Fibreboard.
In Dubuque Packing Co., 303 NLRB 386, 391 (1991), enfd. in relevant part 1 F.3d 24,
31–33 (D.C. Cir. 1993), the Board set forth the test it would use to apply the Court’s First 20
National Maintenance decision for determining whether a work relocation decision is a
mandatory subject of bargaining. Under this test, the General Counsel has the initial burden of
showing that the decision was “unaccompanied by a basic change in the nature of the
employer’s operation.” The employer then has the burden of rebutting the General Counsel’s
prima facie case or proving certain affirmative defenses. Where the Board concludes that the 25
employer’s decision concerned the “scope and direction of the enterprise,” there will be no duty
to bargain over the decision. The Employer may also avoid bargaining if it can show that (1)
labor costs were not a factor or (2) even if labor costs were a factor, the union, could not have
offered sufficient labor cost concessions to alter its work relocation decision. Id. at 391.
Although Dubuque concerned work relocation decisions, the test is applicable to decisions that 30
have a direct impact on employment, but, have as their focus the economic profitability of the
employing enterprise.
In Torrington Industries, 307 NLRB 809 (1992), the employer unilaterally replaced two
union truck drivers with non-bargaining unit drivers and independent contractors, but claimed 35
that its decision was entrepreneurial and did not turn on labor costs. The Board concluded that
the Dubuque Packing test did not apply because the employer’s reasons had nothing to do with
a change in the scope and direction of its business. Instead, the Board concluded that the case
involved subcontracting decisions similar to those in Fibreboard, and, therefore, were
mandatory subjects of bargaining, even though the decision was not motivated by labor costs. 40
In O.G.S. Technologies, Inc., 356 NLRB 642, 645 (2011), a successor employer
unilaterally subcontracted die-cutting work, resulting in the replacement of its own die engineers
by outside firms. The Board applied Torrington and concluded the employer’s termination of a
portion of its operation constituted subcontracting that required decisional and effects 45
bargaining, holding:
JD–55–17
17
In contrast to First National Maintenance, OGS made certain operational
changes, but they did not amount to a ‘partial closing’ or other ‘change in the
scope and direction of the enterprise,’ which remained devoted to the
manufacture and sale of brass buttons to the same range of customers. Before
and after the decision to subcontract die cutting, OGS produced and supplied 5
brass buttons to customers. . . . The decision at issue simply resulted in a
marginal increase in the percentage of cutting work the [r]espondent
subcontracted and a modest change in the functions performed in-house, but not
the abandonment of a line of business or even the contraction of the existing
business.10
Id.
In Mi Pueblo Foods, 360 NLRB 1097 (2014), the employer operated a chain of grocery
stores and a distribution center. The distribution center employees would load food shipments
and grocery items onto trucks, and then unit drivers would deliver them to the employer’s stores. 15
The employer used a third-party trucking company to deliver products from certain suppliers to
the distribution center, where the products would be unloaded and reloaded onto the employer’s
trucks for the unit drivers to deliver to the stores. Later, in an effort to increase productivity and
efficiency, the employer began having the third-party trucking company deliver the supplies
directly to certain stores, bypassing the distribution center and the unit drivers. The union 20
representing the drivers filed a charge alleging the employer had an obligation to bargain over
the subcontracting of this work. The Board held that the employer had an obligation to bargain
over the decision and the effects of changing from a hub-and-spoke delivery model to a point-to-
point model even though that change “did not result in layoffs or significantly affect wages and
hours.” The Board held that whenever bargaining unit work is assigned to outside contractors, 25
the unit is adversely affected, and there is an obligation to bargain, because absent an
obligation to bargain, an employer “could continue freely to subcontract work and not only
potentially reduce the bargaining unit but also dilute the [u]nion's bargaining strength.” 360
NLRB at 1099.
30
In light of the foregoing, the core question is whether the scope and direction of
Respondent’s business was substantially altered when it sold the four company sales routes at
issue to the independent distributors. I find it was not. Respondent has been, and continues to
be, a manufacturer and distributor of snack foods. It has two distribution methods: direct store
delivery and warehouse or direct sales. The direct store delivery method is effectuated by the 35
use of company route sales drivers and independent distributors. Although the percentage of
routes covered route sales drivers versus independent distributors has changed over the years,
Respondent continues to use both to distribute its products to its customers. As for the four
routes at issue, Respondent continues to distribute products to those customers. The only
difference is that independent distributors are delivering the products on those routes rather 40
than the company route sales drivers.
Under Fibreboard, the issue is whether the employer is replacing existing employees
with those of an independent contractor to do the same work under similar conditions. In this
case, that is what Respondent has done. Respondent contends that, unlike company route 45
sales drivers, independent distributors make significant investment in purchasing their territory,
acquiring, maintaining, and insuring storage space, vehicles, equipment, and purchasing
product; and these independent distributors assume sizable risk that they will be able to sell the
products they buy and have a profitable business. However, at its core, both groups are
JD–55–17
18
responsible for delivering Respondent’s products to its customers. Both groups acquire or are
assigned a route or territory. Both of the groups review orders, load the products onto their
vehicles, travel to customer locations, stock customer shelves, rotate unsold product, perform
point-of-sale marketing, and removing expired product. Both use handheld electronic devices to
track orders, deliveries, and sales. And both are primarily paid based on what they sell.16 5
There clearly are differences between the two, but Fibreboard refers to similar conditions, not
identical ones. And despite the differences, I find that the independent distributors perform the
same core work under similar conditions as the route sales drivers. As a result, based on
established precedent, I find the sales of these four company routes in 2016 are akin to
subcontracting, and, therefore, are mandatory subjects of bargaining.10
Respondent contends it has no obligation to bargain because while labor costs were a
factor in deciding to sell the routes, it actually costs Respondent more to use independent
distributors because their margins. But because I conclude that there was no actual change in
Respondent’s operations, and labor costs played a role in Respondent’s decision to sell the 15
routes, Respondent had an obligation to bargain over the decision to sell the four routes at
issue.
Respondent cites to West Virginia Baking Co., 299 NLRB 306 (1990), enfd. 946 F.2d
1563 (D.C. Cir. 1991), for support that it did not have an obligation to bargain over its decision to 20
sell the company routes. In that case, the administrative law judge dismissed the complaint,
including the allegations the employer violated Section 8(a)(5) and (1) of the Act when it
unilaterally converted all its bargaining unit driver-salesmen to independent distributors after
bargaining to an impasse with the union. The judge found that the decision to convert all the
unit drivers to independent distributors was not a mandatory subject of bargaining. On appeal, 25
the Board held:
We agree with the judge’s conclusion that the Respondent did not refuse to
bargain in good faith over the decision to convert its driver-salesmen to
independent distributors and the effects of that decision and, in fact, did bargain 30
in good faith over the decision and its effects until impasse and lawful
implementation of the distributorship program. Accordingly, we find it
unnecessary to pass on whether the Respondent's decision to convert its driver-
salesmen to independent distributors is a mandatory or permissive subject of
bargaining.35
299 NLRB at 306 fn. 3 (italics added).
I find this case to be inapposite. To begin with, the employer sought to completely
eliminate all of its driver-salesmen and convert them to independent distributors. It then met 40
and bargained with the union over its decision and its effects. After the parties reached an
impasse, the employer implemented the change. As stated above, the Board chose not to
address whether the employer’s conversion decision was a mandatory subject of bargaining.

16 Under the parties’ agreement, route sales drivers are paid a flat rate for route riding and pull up
(stocking) work. Otherwise, they are paid a commission. (Jt. Exh. 1, pg. 7.)
JD–55–17
19
Respondent also cites to NLRB v. Adams Dairy, 350 F.2d 108 (8th Cir. 1965), cert.
denied 382 U.S. 1011 (1965), for support. In that case, the Court of Appeals denied
enforcement of the Board’s decision in Adams Dairy, 137 NLRB 815 (1962), in which the
administrative law judge and the Board concluded that the employer violated Section 8(a)(5)
and (1) of the Act when it had independent distributors take over the driver-salesmen routes, 5
without giving the Union prior notice or an opportunity to bargain. I am bound by Board law and
cannot rely upon the reasoning of the Court of Appeals for not enforcing the Board’s order.
Even were that not true, I find the case to be inapposite because the employer completely
eliminated all driver-salesmen routes and sold all of its trucks. In the present case, Respondent
continues to employ company route sales drivers and possess trucks, and, based on Kazer’s 10
testimony, it likely will continue to employ route sales drivers out of concern that to do otherwise
would trigger significant pension withdrawal liability. (Tr. 581-582).
B. The Union Did Not Waive its Right to Bargain Over the Decision to Sell Routes 102
or 131 by Failing to Request Bargaining.15
An employer violates Section 8(a)(5) when it unilaterally institutes changes in mandatory
terms of employment without bargaining in good faith. NLRB v. Katz, 369 U.S. at 743. In
general, good-faith bargaining requires timely notice and a meaningful opportunity to bargain
regarding a proposed change. See Wackenhut Corp., 345 NLRB 850, 868 (2005); Brimar Corp., 20
334 NLRB 1035, 1035 (2010). Once notice is received, the union must act with “due diligence”
to request bargaining, or risk a finding that it has waived its bargaining right. See KGTV, 355
NLRB 1283 (2010). A union may be excused from requesting to bargain if the employer’s
notice provides too little time for negotiation before implementation, or if the employer otherwise
has made it clear that it has no intention of bargaining about the issue. In these circumstances, 25
a bargaining request would be futile, because the employer’s notice informs the union of nothing
more than a fait accompli. In order to determine whether the employer has presented the union
with a fait accompli, the Board considers objective evidence regarding the presentation of the
proposed change and the employer’s decision-making process. Id. (union’s “subjective
impression of its bargaining partner’s intention is insufficient” to establish fait accompli). While 30
presenting a proposed change as a fully formulated plan or the use of positive language does
not definitively establish a fait accompli, statements conveying an irrevocable decision constitute
significant evidence that bargaining would be futile. UAW-DaimlerChrysler National Training
Center, 341 NLRB 431, 433 (2004) (employer presented fait accompli by telling union that layoff
was a ““done deal”); Pontiac Osteopathic Hospital, 336 NLRB at 1023–1024 (notice stating that 35
changes “will be implemented” and other “unequivocal language” evidence of fait accompli). The
Board also evaluates the timing of the employer's statements vis-a-vis the actual
implementation of the change, the manner in which the change is presented, and other
evidence pertinent to the existence of a “fixed intent” to make the change at issue which
obviates the possibility of meaningful bargaining. Ciba-Geigy Pharmaceutical Division, 264 40
NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983) Northwest Airport Inn, 359 NLRB
690, 693 (2013) (fait accompli established given owner’s testimony that a decision to
subcontract bargaining unit work had already been made and implemented, and union
bargaining proposals regarding employee compensation “made no difference”).
45
As previously stated, on April 27, 2016, Respondent sent the Union a letter stating that,
in accordance with Respondent’s rights as recognized by Arbitrator Paolucci in his decision in
the Watson matter, Respondent was seriously considering the elimination of three Dayton, Ohio
sales routes by selling them to independent distributors. The letter stated that a final decision
JD–55–17
20
would be made within 3–6 months. Respondent noted that if it ultimately decided to sell one or
more of these routes to independent distributors, it would provide the Union with timely notice of
its decision, bargain over the effects of the route elimination(s), and that affected drivers would
have seniority-based bumping rights. At the June 2016 third-step grievance meeting over the
Union’s May 2016 grievance, Respondent informed the Union that it had the right to make the 5
sales under the Paolucci decision. On July 11, 2016, Respondent sent the Union a letter stating
that it will be selling Route 102, Xenia territory, effective July 24, 2016. There is no dispute the
Union took no action after it received Respondent’s July 11 letter notifying it of the sale of Route
102. Respondent contends that the Union’s failure to request bargaining over the sale of the
route amounts to a waiver of it right to bargain. The General Counsel counters, arguing that the 10
Union had no obligation to request bargaining because Respondent announced the sale of
Route 102 as a fait accompli.
I find the combination of Respondent’s April 27 and on July 11 letters amounted to a
notice of a fait accompli. Respondent’s April 27 letter to the Union stated that in accordance 15
with its rights, it would make a “final decision” within 3–6 months, and Respondent would notify
the Union of that decision and “bargain over the effects of the route elimination(s).” Sutter
Health Central Valley Region, 362 NLRB No. 199, slip op. at 3 (2015)(fait accompli when the
announcement or notification is presented as a “final decision”). As promised, on July 11,
Respondent notified the Union of its final decision to sell Route 102, which would be effective on 20
July 24, 2016. The only reasonable reading of these letters is that Respondent had no intention
of bargaining with the Union regarding the decision to sell these routes; only that it would be
willing to bargain over the effects. This conclusion is further supported by Respondent’s
September 12, 2016 response to the Union’s August 31, 2016 request to bargain over the
decisions to sell Routes 104 and 122, when Respondent stated that, per the Arbitration 25
decision, it had no obligation to bargain with the Union over the sale of these routes.
Consequently, under these circumstances, I find that the Union’s failure to request bargaining
over the sale of Route 102 does not constitute a waiver of its right to bargain.
Similarly, I find the Union did not waive its right to bargain over the sale of Route 131 by 30
failing to make a request to bargain after receiving notice of that decision to sell. Respondent
provided the Union with notice of that sale the same day it provided its reasoning as to why it
did not have an obligation to bargain over the sale of Routes 104 and 122. Based on that
information, I find Respondent announced the sale of Route 131 as a fait accompli because it
had a fixed intent and was not willing to bargain over the decision.35
C. The Union Did Not “Clearly and Unmistakably” Waive Its Right to Bargain Over the
2016 Decision to Sell of the Four Company Routes.
Respondent contends that the Union has waived its right to bargain over the sale of 40
company routes. An employer may escape liability for a unilateral change if it proves that a
union has expressed or implied a “clear and unmistakable waiver” of its right to bargain.
Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983); Provena St. Joseph Medical Center,
350 NLRB 808, 810–812 (2007). A waiver occurs when a union knowingly and voluntarily
relinquishes its right to bargain about a term and condition of employment and cedes full 45
discretion to the employer on such a matter. However, the Board narrowly construes waivers
and has been hesitant to imply waivers not explicitly mentioned in the parties' collective-
bargaining agreements. Mississippi Power Co., 332 NLRB 530 (2000), enfd. in part 284 F.3d
605 (5th Cir. 2002) (rejecting employer’s waiver argument that the unions incorporated the
JD–55–17
21
benefit plans' reservation of rights clauses into the contract based on a “course of conduct” of
copies of the benefit plans provided to the unions and incorporated into the collective-bargaining
agreements). A clear and unmistakable waiver can be gleaned from the parties’ past practice,
bargaining history, prior action or inaction. American Diamond Tool, 306 NLRB 570 (1992).
However, Board precedent makes clear that a union's acquiescence in previous unilateral 5
changes does not operate as a waiver of its right to bargain over such changes for all time.
Owens-Brockway Plastic Products, 311 NLRB 519, 526 (1993). The burden is on the party
asserting the waiver to establish the existence of the waiver. Pertec Computer, 284 NLRB 810
fn. 2 (1987).
10
Respondent initially contends that it had no obligation to bargain because it had an
inherent right, separate from the expired agreement, to make these decisions to sell routes. I
have already addressed and rejected that argument. Respondent also indirectly relies upon the
language of the parties’ expired collective-bargaining agreement, and the arbitration decision in
the Watson matter, as supporting its waiver argument.17 As previously stated, the parties’ 15
agreement does not address the subcontracting of bargaining unit work. Arbitrator Paolucci
acknowledged this in his decision. He concluded that the sale of the company route was
permitted under the management-rights clause, which allowed Respondent the discretion to
control distribution methods. However, the Board consistently has held that a waiver of
bargaining rights under a management-rights clause does not survive the expiration of a 20
contract. Buck Creek Coal, 310 NLRB 1240 (1993); Control Services, 303 NLRB 481 (1991),
enfd. 975 F.2d 1551 (3d Cir. 1992), enfd. 961 F.2d 1568 (3d Cir. 1992); Kendall College of Art,
288 NLRB 1205, 1212 (1988).
Regardless, a waiver of a statutory bargaining right must be “clear and unmistakable” 25
and will not be inferred from general contract language. Provena St. Joseph Medical Center,
supra; Control Services, supra. The contract language falls well short of this standard. It makes
no reference to the period beyond the contract’s expiration, and fails to unequivocally and
specifically express an intention to permit the Respondent to continue implementing unilateral
changes of this sort after contract expiration. The American Red Cross, Great Lakes Blood 30
Services Region and Mid-Michigan Chapter, 364 NLRB No. 98, slip op. at 4 (2016).
Respondent further argues that the Union waived its right to bargain by the past practice
that has developed as a result of the Union’s failure to object to or demand bargaining over the
sales of company routes to independent distributors prior to 2016. To establish a past practice 35
of subcontracting justifying a refusal to bargain, an employer must show that the previous
subcontracting was similar in kind and degree and occurred with such regularity and frequency
that employees could reasonably expect the practice to continue or recur on a regular and
consistent basis. A history of subcontracting on a random, intermittent, or discretionary basis is
insufficient. Hospital San Cristobal, 358 NLRB 769, 772 (2012), reaffd. 363 NLRB No. 164 40
(2016); Ampersand Publishing, LLC, 358 NLRB 1415, 1416 (2012), reaffd. 362 NLRB No. 26

17 At the hearing Respondent cited to its June 2013 revised final offer and its modified language
addressing bidding rights. Respondent argued that, under either the prior language or revised language,
the Union waived its right to bargain over the sale of company routes. However, in its communications
with the Union announcing these sales, Respondent never cited to or relied upon the modified bidding
language in its June 2013 revised final offer to support its unilateral action. Respondent, instead,
repeatedly relied solely upon Arbitrator Paolucci’s decision—and the language that existed then--to
support its action.
JD–55–17
22
(2015); and Sociedad Espanola de Auilio Mutuo y Beneficiencia de P.R., 342 NLRB 458, 468–
469 (2004), enfd. 414 F.3d 158, 165–167 (1st Cir. 2005). See also E. I. du Pont de Nemours,
364 NLRB No. 113 (2016).
In E. I. du Pont de Nemours, 364 NLRB No. 113 (2016), the Board, upon remand from 5
the D.C. Circuit Court of Appeals, reexamined whether the employer violated Section 8(a)(5)
and (1) of the Act by unilaterally changing the terms of the employees’ benefit plan at its
facilities post contract expiration at a time when the parties were negotiating for successor
agreements and were not at impasse. The Board, pursuant to the Court’s remand instructions,
returned to the rule it followed in its earlier decisions, including Beverly Health & Rehabilitation 10
Services, 335 NLRB 635 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir. 2003), and
Register-Guard, 339 NLRB 353 (2003), that discretionary unilateral changes ostensibly made
pursuant to a past practice developed under an expired management-rights clause are unlawful.
The majority overruled precedent, including the Board’s decisions in the Courier-Journal cases,
342 NLRB 1093 (2004) and 342 NLRB 1148 (2004), Capitol Ford, 343 NLRB 1058 (2004), and 15
Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006), to the extent that those Board
decisions conflicted with well-settled waiver principles, and were inconsistent with the Act’s goal
to encourage the practice of collective bargaining.
Applying the status quo doctrine under NLRB v. Katz, supra, the Board held that during 20
negotiations for a successor agreement, the employer has a statutory duty to maintain the
status quo by continuing in effect the employment terms and conditions that existed at the
expiration of the parties' agreement. Id. slip op. at 4. But because the essence of a
management-rights clause is the union's consensual surrender of its statutory right to bargain
during the term of the contract, that waiver, like any waiver of a statutory right, does not survive 25
contract expiration, absent evidence of the parties' contrary intent. Thus, the status quo doctrine
under Katz does not privilege the employer to continue making unilateral changes that, during
the term of the agreement, would have been authorized by the now-expired management-rights
clause. Id., slip op. at 5. And, because unilateral changes implemented during the term of a
contract under the authority of a management-rights clause are based on a union's bargaining 30
waiver, the right granted to an employer to make changes to employees’ terms of employment
under that clause does not create a past practice permitting an employer to continue to
unilaterally implement changes post contract expiration. Id., slip op. at 5–6.
Having overruled the Courier-Journal decisions and Capitol Ford, the majority found that 35
the employer’s wide ranging and varied changes to the benefits of unit employees, made with
no cognizable fixed criteria, did not establish a past practice that the employer was permitted to
continue when the applicable collective-bargaining agreements had expired. Therefore, the
majority held that following the expiration of the parties’ collective-bargaining agreements, the
employer had the statutory obligation to adhere to the terms and conditions of employment that 40
existed on the expiration date until it bargained to agreement or reached a good-faith impasse in
overall bargaining for a new agreement.
Applying these principles to the instant case, I find that Respondent cannot rely upon its
prior, unilateral decisions to sell company routes to independent distributors, both before and 45
after the expiration of the parties’ agreement, as establishing a waiver of the Union’s right to
request bargaining over the sale of the four company routes at issue. As established in all the
letters Respondent sent to the Union announcing its intent to sell the routes, as well as its
response to the Union’s August 2016 demand to bargain, Respondent relied upon Arbitrator
JD–55–17
23
Paolucci’s decision, which found Respondent had the right sell company routes based on the
language of the now expired management-rights clause.18
Relying on Arbitrator Paolucci’s decision, Respondent argues that Article VIII-B, Section
5, which sets forth employees’ bidding rights when a route is eliminated or merged, supports 5
finding a waiver. Arbitrator Paolucci held the “elimination provision must be given a broader
interpretation and it must apply where the lack of profitability could result in either the complete
withdrawal from a market, or the selling of a route thus making the route eliminated from the
Company’s control.” To begin with, I am not bound by an arbitrator’s decision. Spielberg
Manufacturing Co., 112 NLRB 1080, 1081 (1955). And, in this case, I do not agree with the 10
Arbitrator’s interpretation or reasoning. Article VIII-B, Section 5 does not give Respondent the
right to unilaterally sell routes, and it does not constitute a clear and unmistakable waiver of the
Union’s right to bargain. The provision addresses bidding rights in the event routes are
eliminated or merged. However, when Respondent sells a route to an independent distributor, it
is not eliminated—it continues to exist. It merely is being serviced by an independent 15
distributor, as opposed to a unit driver.
Moreover, Respondent argues these sales to independent distributors involve the
transfer of a discrete business unit. But, according to the independent distributor agreement,
Respondent is transferring a primary, not exclusive, right to distribute its products within a 20
defined territory, and the distributor has certain rights and obligations regarding servicing of that
territory. And, if the distributor is unable to service that route, it reverts back to Respondent.
This occurred on three separate occasions following the expiration of the parties’ collective-
bargaining agreement, when the independent distributors went bankrupt.19
25
The result is there is no provision, other than the management-rights clause, that
arguably gives Respondent the authority to subcontract work by selling routes. Absent some
other contractual provision waiving the Union’s right to bargain over the subcontracting of unit
work through the sale of the route to an independent distributor, the default, or the status quo, is
the statutory obligation to bargain over those decisions. 30

18 Respondent argues that Arbitrator Paolucci recognized that Respondent had an “inherent management
right” to sell company routes. I reject that argument. The Arbitrator stated that “[a]bsent clear contract
language, it must be found that the management right to control distribution, and determine profitability
allows the action of the Company.” The management-rights provision of the expired agreement states
that the “right to improve manufacturing methods, operations and conditions and distribution of its
products . . . is exclusively reserved to the company.” I find that Arbitrator Paolucci was relying upon this
language as giving Respondent the right to sell the route in that case, and he was not concluding that
there was some extra-contractual right. See generally Weavexx, LLC, 364 NLRB No. 141, slip op. 3
(2016); and Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, enfd. 722 F.2d 1120, 1126 (1983)
(“The arbitrator’s conclusion that an extra-contractual residual rights theory authorizes management to
make unilateral decisions on mandatory subjects of collective bargaining not specifically covered in a
collective bargaining agreement disregards clear Board precedent.”).
19 As previously stated, prior to Buckeye filing for bankruptcy, Kazer testified that he was in discussions
with Snyder Lance, the second largest snack food manufacturer and distributor in the country, about
Buckeye’s 29 sales routes in Columbus, Sabina, and Cincinnati, Ohio. Kazer explained that he contacted
Snyder Lance about taking over these routes “because of the job that Buckeye was doing.” (Tr. 358–
359). Kazer did not provide any more information as to what he meant by that statement; however, it
suggests that Respondent retains certain control and authority over routes that are sold to independent
distributors to ensure that the routes are being properly handled.
JD–55–17
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Respondent points to the numerous routes it sold prior to and after the expiration of the
collective-bargaining agreement to support its waiver argument. However, as stated above, the
Board has held that prior changes, made with no cognizable fixed criteria, do not establish a
past practice that the employer was permitted to continue post-contract expiration, even if 5
earlier changes also occurred during contract hiatuses pursuant to the expired management
rights provision. E. I. du Pont de Nemours, supra. In this case, there were no set criteria used
to decide which routes to sell. Kazer testified the decisions to sell were based on what routes
the distributors wanted to buy and whether Respondent believed that they could handle the
routes.20 10
Regardless, I find that Respondent’s waiver arguments, whether based on the
management-rights clause in the expired contract, the arbitration decision which relied upon the
management-rights clause, or the past practice that developed pursuant to the management-
rights clause or arbitration decision, all fail under current Board precedent. As such, I find 15
Respondent had a statutory obligation to bargain with the Union over the decision to sell the
four routes at issue, and its failure to do so violates Section 8(a)(5) and (1) of the Act.
D. Respondent Had an Obligation to Provide the Union with the Information
Requested on August 31, 201620
The General Counsel contends that Respondent had an obligation to provide the Union
with the information it requested on August 31 related to the sales of routes at issue. It is well
settled that an employer’s duty to bargain collectively under Section 8(a)(5) of the Act includes
the duty to supply requested information to a union that is the collective-bargaining 25
representative of the employer's employees if the requested information is relevant and
reasonably necessary to the union's performance of its responsibilities. NLRB v. Acme Industrial
Co., 385 U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); Detroit
Edison Co. v. NLRB, 440 U.S. 301 (1979). This duty is not limited to contract negotiations but
extends to requests made during the term of the contract for information relevant to and 30
necessary for contract administration and grievance processing. Beth Abraham Health Services,
332 NLRB 1234 (2000). The standard for determining the relevancy of requested information is
a liberal one and it is necessary only to establish “the probability that the desired information is
relevant, and that it would be of use to the union in carrying out its statutory duties and
responsibilities.” Id. at 437. See also Leland Stanford Junior University, 262 NLRB 136, 139 35
(1982), and cases cited therein. Therefore, the information must have some bearing on the

20 The General Counsel and the Union further argue that the Union’s failure to demand bargaining over
the prior sales does not constitute waiver because the 2016 sales were different, largely because they
were located in and around Dayton, and Respondent had not sold Dayton routes in the past. The Union
asserts that Routes 102, 104, 122, and 131 were some of the more profitable routes, unlike the routes
sold in the past. The Union believes that part of the reason these routes were more profitable was
because of their proximity to the Dayton distribution center, which reduced the transportation costs
associated with those routes, as compared to the other routes sold that were located in outlying areas.
The General Counsel and the Union argue that because of these differences, and the fact that
Respondent never sold Dayton routes before, the Union’s failure to bargain over the other routes is
irrelevant to whether they clearly and unmistakably waived the routes at issue. I need not address this
contention, because I have concluded Respondent has failed to establish a clear and unmistakable
waiver.
JD–55–17
25
issue between the parties but does not have to be dispositive. Kaleida Health, Inc., 356 NLRB
1373, 1377 (2011).
Where the union's request is for information pertaining to employees in the bargaining
unit, that information is presumptively relevant and the Respondent must provide the 5
information. However, where the information requested is not presumptively relevant to the
union's performance as the collective-bargaining representative, the burden is on the union to
demonstrate the relevance of the information requested. Disneyland Park, 350 NLRB 1256,
1257–1258 (2007). Where the requested information pertains to matters outside the bargaining
unit and is not presumptively relevant, the information must be provided if the surrounding 10
circumstances put the employer on notice as to the relevance of the information or if the union
shows why the information is relevant. National Extrusion & Mfg. Co., 357 NLRB 127 (2011).
Where a showing of relevance is required because the request concerns non-unit matters, the
burden is “not exceptionally heavy.” Shoppers Food Warehouse, 315 NLRB 258, 259 (1994).
This burden is satisfied when the union demonstrates a reasonable belief, supported by 15
objective evidence, that the requested information is relevant. Disneyland Park, supra at 1258.
The Board has held that information requested pertaining to subcontracting agreements,
even if it relates to the bargaining unit employees’ terms and conditions of employment, is not
presumptively relevant, and therefore a union seeking such information must demonstrate its 20
relevance. Disneyland Park, supra at 1258. Specifically, on the subject of subcontracting
situations, the Board in Disneyland Park held that a broad, discovery-type standard is utilized by
the Board in determining the relevance of requested information, and that potential or probable
relevance is sufficient to give rise to an employer's obligation to provide information. Id. In that
regard, in Disneyland Park, the Board held that to demonstrate relevance, the General Counsel 25
must present evidence either (1) that the union demonstrated relevance of the non-unit
information, or (2) that the relevance of the information should have been apparent to the
employer under the circumstances. Disneyland Park, supra at 1258; Absent such a showing,
the employer is not obligated to provide such requested information. The Board has also held
that “[t]he union’s explanation of relevance must be made with some precision; and a 30
generalized, conclusory explanation is insufficient to trigger an obligation to supply information.”
Disneyland Park, supra at 1258 fn. 5; Island Creek Coal, 292 NLRB 480, 490 fn. 19 (1989); see
also Schrock Cabinet Co., 339 NLRB 182 fn. 6 (2003).
In its August 31 letter demanding to bargain, the Union disputed Respondent’s claims 35
that Arbitrator Paolucci’s decision gave it the authority to sell the routes at issue. The Union
distinguished that case from the known facts about the routes at issue. The Union stated in this
letter that in order facilitate bargaining, particularly in light of Respondent’s reliance on the past
arbitration decision which largely hinged on route profitability, the Union requested the following:
(1) All documents that demonstrate the profitability of all of the Company’s routes for the period 40
from September 1, 2014 through August 1, 2016 so comparison can be made as to the
profitability of all the routes on Route No. 104 and Route No. 122; (2) A copy of the agreement
between Mike-Sell’s and the entity to whom Route No. 104 and Route No. 122 is scheduled to
be sold; (3) A description of how Mike-Sell’s product is to be received by the entity to whom
[R]oute No. 104 and Route No. 122 is scheduled to be sold; and (4) A copy of all 45
correspondence, including electronic correspondence, between Mike-Sell’s in the entity to
whom Route No. 104 and Route No. 122 is scheduled to be sold from the date of the first such
correspondence until August 29, 2016. Based on the wording of the letter, and the context in
which it was sent, I find that the Union demonstrated the relevance of the information request, or
JD–55–17
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that the relevance of the information should have been apparent under the circumstances. As
such, Respondent’s failure to provide the requested information violates Section 8(a)(5) and (1)
of the Act.
E. The Allegation That Respondent Failed to Bargain with the Union Regarding the 5
Sale of the Company Vehicles to the Independent Distributors is Either
Abandoned or Barred by Section 10(b) of the Act
At the hearing, the General Counsel amended the complaint to include allegations that
Respondent violated Section 8(a)(5) and (1) of the Act when it sold the delivery trucks to 10
independent distributors. The parties entered into stipulations limiting this allegation to
Respondent’s sale of a delivery truck to independent distributor Lisa Krupp’s company BLM
Distributing LLC on around September 4, 2016; and Respondent’s sale of a delivery truck to
independent distributor Charles Morris’s company Big TMT Enterprize, LLC on September 11,
2016. (Tr. 222.) 15
An employer has a duty to bargain with the representative of its employees prior to
making any changes in wages, hours or other working conditions if the change is a “material,
substantial and a significant” one affecting the bargaining unit’s terms and conditions of
employment, and the General Counsel bears the burden of establishing that the change was 20
material, substantial and significant. Central Telephone Co. of Texas, 343 NLRB 987, 1000
(2004). In this case, the Counsel for General Counsel completely failed to address this
allegation in her posthearing brief. Similarly, the Union failed to present any argument or
authority in support of this allegation. Thus, the allegation appears to have been abandoned. In
any event, the General Counsel failed to carry the burden of proof and persuasion.25
Even if the General Counsel had established the sales to be unlawful, there is the issue
of whether the allegation was timely. As indicated above, Respondent contends the allegation
over the sale of the vehicles is barred under Section 10(b) of the Act. Section 10(b) of the Act
provides, in pertinent part, “[t]hat no complaint shall issue based upon any unfair labor practice 30
occurring more than six months prior to the filing of the charge with the Board.” It is well
established that the 10(b) limitations period does not begin to run “until the charging party is on
‘clear and unequivocal notice,’ either actual or constructive, of a violation of the Act.” Ohio and
Vicinity Regional Council of Carpenters (The Schaefer Group, Inc.), 344 NLRB 366, 367 (2005)
(citation omitted). Under this standard, adequate notice will be found where the conduct was 35
sufficiently “open and obvious to provide clear notice” to the charging party. Broadway
Volkswagen, 342 NLRB 1244, 1246 (2004), enfd. sub nom. East Bay Automotive Council v.
NLRB, 483 F.3d 628 (9th Cir. 2007)), or where the charging party was “on notice of facts that
reasonably engendered suspicion that an unfair labor practice had occurred,” and could have
discovered the violation by exercising reasonable diligence. Phoenix Transit System, 335 NLRB 40
1263 fn. 2 (2001). See also St. George Warehouse, 341 NLRB 905, 905 (2004) (“In determining
whether a party was on constructive notice, the inquiry is whether that party should have
become aware of a violation in the exercise of reasonable diligence.”). Respondent, in this case,
shoulders the burden in establishing this affirmative defense. Broadway Volkswagen, supra.
45
On August 29, 2016, Respondent sent the Union a letter stating that Respondent will be
eliminating two positions through the sale of Route 104 and Route 122, effective September 4,
2016. Respondent noted that the affected drivers (Gerald Shimmer #122 and Jerry Lake #104)
would have an opportunity to rebid on September 1, 2016. On August 30, 2016, Gerald
JD–55–17
27
Shimmer informed union steward Rick Vance that he was told that his delivery vehicle was
being sold, and that he (Shimmer) needed to unload his truck and use a spare vehicle for the
last few days of his route. (Tr. 114115). I find the timing of these notifications was sufficient to
put the Union “on notice of facts that reasonably engendered suspicion that an unfair labor
practice had occurred” and that the Union could have discovered whether there had been a 5
violation “by exercising reasonable diligence.” Despite this notification, the Union failed to
exercise reasonable diligence to determine whether the sale of this vehicle, or any other
vehicles, at or around the time these two routes were sold constituted a violation.
Consequently, I find that the allegation was filed more than 6 months after the Union had
constructive notice of the alleged violations, and, therefore, should be dismissed as untimely.10
CONCLUSIONS OF LAW
1. Respondent, Mike-Sell’s Potato Chip Company, is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.15
2. The Union, International Brotherhood of Teamsters (IBT), General Truck Drivers,
Warehousemen, Helpers, Sales and Service, and Casino Employees, Teamsters Local Union
No. 957, is a labor organization within the meaning of Section 2(5) of the Act.
20
3. The Union is the certified collective-bargaining representative for the following unit of
Respondent’s employees:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s] Dayton Plant,
Sales Division and at [Respondent’s] Sales Branch in Cincinnati, Columbus, 25
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].
4. Respondent has violated Section 8(a)(5) and (1) of the Act since July 2016 by failing to 30
give the Union notice and an opportunity to bargain about its decision to unilaterally subcontract
bargaining unit work to others outside the bargaining unit; and by failing to provide the Union
information requested on August 31, 2016, that is relevant and necessary to its role as
collective-bargaining representative.
35
5. By this conduct Respondent has engaged in unfair labor practices affecting commerce
within the meaning Section 2(6) and (7) of the Act.
6. Respondent has not violated the Act except as set forth above.
40
7. I recommend dismissing that portion of the amended complaint which alleges that the
Respondent violated Section 8(a)(5) and (1) of the Act by failing or refusing to bargain with the
Union before unilaterally selling the delivery vehicles.
REMEDY45
Having found that the Respondent has engaged in certain unfair labor practices, it is
ordered to cease and desist therefrom and to take certain affirmative action designed to
effectuate the policies of the Act. Affirmatively, Respondent shall, upon request from the Union,
JD–55–17
28
rescind the sales of Routes 102, 104, 122, and 131. Respondent shall, upon request, bargain
with the Union regarding the decision to subcontract or sell company sales routes. Respondent
shall make any employees whole, with interest, for any loss of earnings resulting from
Respondent’s unilateral subcontracting of bargaining unit work associated with the sale of
Routes 102, 104, 122, and 131 to independent distributors. The Respondent will compensate 5
employees for any adverse tax consequences for receiving lump-sum backpay awards by
payment to each employee of the amount of excess tax liability owed, and will file a report with
the Social Security Administration allocating the backpay awards to the appropriate calendar
quarters for each employee. The Respondent shall provide the Union with the information
requested in its August 31, 2016 information request.10
Respondent shall post an appropriate informational notice, as described in the attached
Appendix. This notice shall be posted at the Respondent’s Dayton facility wherever the notices
to employees are regularly posted for 60 days without anything covering it up or defacing its
contents. In addition to physical posting of paper notices, notices shall be distributed 15
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. In the
event that, during the pendency of these proceedings Respondent has gone out of business or
closed the facility involved in these proceedings, Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees and former employees employed by 20
Respondent at any time since July 11, 2016. When the notice is issued to Respondent, it shall
sign it or otherwise notify Region 9 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the entire record, I issue the 25
following recommended21
ORDER
Respondent, Mike-Sell’s Potato Chip Company, at its Dayton, Ohio facilities, its officers, 30
agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing or refusing to bargain with Union is the designated collective-bargaining35
representative of the following bargaining unit of the employees regarding their wages, hours,
and other terms and conditions of employment:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s] Dayton Plant,
Sales Division and at [Respondent’s] Sales Branch in Cincinnati, Columbus, 40
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].

21 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–55–17
29
(b) Making unilateral changes to wages, hours, or other terms and conditions of
employment of the bargaining unit employees without first providing the Union with notice and
an opportunity to bargain, including, but not limited to, the subcontracting of bargaining unit work
through the sale of company sales routes.
5
(c) Failing or refusing to provide the Union with requested information, such as the
Information requested in the Union’s August 31, 2016 information request that is relevant and
necessary to the Union’s role as collective-bargaining representative.
(d) In any like or related manner interfere with, restrain, or coerce employees in the 10
exercise of the rights listed above.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Provide the Union with notice and an opportunity to bargain before unilaterally15
making changes to wages, hours, or other terms and conditions of employment of bargaining
unit employees, including, but not limited to, the subcontracting of bargaining unit work through
the sale of company sales routes.
(b) Upon request from the Union, rescind the sales of Routes 102, 104, 122, and 131 to 20
independent distributors.
(c) Make affected employees whole, with interest, for any loss of earnings resulting from
the subcontracting of unit work through the sale of Routes 102, 104, 122, and 131 to
independent distributor, less any net interim earnings, plus interest, plus reasonable search-for-25
work and interim employment expenses.
(d) Compensate affected employees for any adverse tax consequences for receiving
lump-sum backpay awards by payment to each employee of the amount of excess tax liability,
and file a report with the Social Security Administration allocating the backpay awards to the 30
appropriate calendar quarters for each employee.
(e) Within 14 days after service by the Region, post at its facilities in Dayton, Ohio
copies of the attached notice marked Appendix A.21 Copies of the notice, on forms provided by
the Regional Director for Region 9 after being signed by the Respondent’s authorized 35
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places throughout its Dayton, Ohio facility, 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 40
by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has closed certain facilities involved in these

21 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–55–17
30
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
July 11, 2016.
(f) Within 21 days after service by the Region, file with the Regional Director a 5
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., July 25, 2017.
10
Andrew S. Gollin
Administrative Law Judge
3thidQV6Z
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
FEDERAL LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist a union;
• Choose a representative 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 to prevent you from exercising the above rights.
WE WILL NOT fail or refuse to bargain in good faith with International Brotherhood of
Teamsters (IBT), General Truck Drivers, Warehousemen, Helpers, Sales, and Service, and
Casino Employees, Teamsters Local Union No. 957 (Union) as the exclusive collective-
bargaining representative of our employees in the following appropriate unit:
All sales drivers, and extra sales drivers at the [Respondent’s] Dayton Plant,
Sales Division and at the [Respondent’s] Sales Branch in Cincinnati, Columbus,
Greenville, Sabina and Springfield, Ohio and all over-the-road drivers employed
by the [Respondent], but excluding all supervisors, security guards, and office
clerical employees employed by the [Respondent].
WE WILL NOT refuse to meet and bargain in good faith with your Union over any proposed
changes in wages, hours, and working conditions before putting such changes into effect.
WE WILL NOT change your terms and conditions of employment by unilaterally selling our
routes without notification to the Union or affording the Union an opportunity to bargain
regarding these decisions.
WE WILL NOT refuse to provide the Union with information that is relevant and necessary to its
representational duties.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
WE WILL upon request, bargain in good faith with the Union as the exclusive collective-
bargaining representative of our unit employees about the sale of Routes 102, 104, 122 and
#131.
WE WILL if requested by the Union, rescind the sales of our Ohio Routes 102, 104, 122, and
131 that we made without bargaining with the Union and assign those routes to unit employees.
WE WILL pay you for the wages and other benefits lost because of the sales of our Ohio
Routes 102, 104, 122, and 131 that we made without bargaining with the Union, less any net
interim earnings, plus interest, plus reasonable search-for-work and interim employment
expenses.
WE WILL compensate employees for the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Regional Director for Region 9, within 21
days of the date the amount of backpay is fixed by agreement, a report allocation the backpay
award to the appropriate calendar year(s).
WE WILL promptly furnish the Union with the following information requested in its August 29,
2016 information request letter: (1) documents showing the profitability of Respondent’s routes
for the period September 1, 2014 through August 1, 2016, so a comparison could be made
between all of the routes to Routes 104 and 122; (2) a copy of the agreement between
Respondent and the entity who is scheduled to purchase these routes; (3) a description of how
Respondent’s product is to be received by the entities purchasing these routes; and, (4) a copy
of all correspondence between Respondent and the entity who is scheduled to purchase these
routes.
MIKE-SELL’S POTATO CHIP COMPANY
(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.
John Weld Peck Federal Building, 550 Main Street, Room 3003, Cincinnati, OH 45202-3271
(513) 684-3686, Hours: 8:00 a.m. to 4:30 p.m.
The Administrative Law Judge’s decision can be found at https://www.nlrb.gov/case/09-CA-184215 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, DEFACE, 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, 513-684-3733.