DAYTON HEIDELBERG DISTRIBUTING CO. A/K/A HEIDELBERG DISTRIBUTING COMPANY

National Labor Relations Board - Board Decisions

Nov 18, 2016

364 NLRB No. 148 (N.L.R.B. 2016)

364 NLRB No. 148
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Dayton Heidelberg Distributing Co. d/b/a Heidelberg
Distributing Co. and International Brotherhood
of Teamsters Local Union No. 284. Case 09–
CA–156105
November 18, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On June 8, 2016, Administrative Law Judge Thomas
M. Randazzo issued the attached decision. The Charging
Party filed exceptions and a supporting brief, the Re-
spondent filed an answering brief, and the Charging Par-
ty filed a reply.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Dated, Washington, D.C. November 18, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

1 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Jonathan D. Duffey, Esq., for the General Counsel.
John R. Doll, Esq. and Matthew T. Crawford, Esq.,
for the Charging Party.
Stephen J. Sferra, Esq. and Adam Primm, Esq.,
for the Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS M. RANDAZZO, Administrative Law Judge. This
case was tried in Columbus, Ohio, on December 7–9, 2015.
The International Brotherhood of Teamsters Local Union No.
284 (the Charging Party or Union) filed a charge on July 15,
2015, and the General Counsel issued the complaint and notice
of hearing in this matter on October 8, 2015.
The complaint alleges that Dayton Heidelberg Distributing
Co., d/b/a Heidelberg Distributing Co. (the Respondent), vio-
lated Section 8(a)(5) and (1) of the National Labor Relations
Act (the Act) by, since on or about July 13, 2015,1 failing and
refusing to execute a complete agreement reached on the terms
and conditions of employment for the unit employees on May
26, 2015, which was incorporated in a collective-bargaining
agreement. The Respondent, in its answer, denied that it vio-
lated the Act as alleged.
On the entire record,2 including my observation of the de-
meanor of the witnesses,3 and after considering the briefs filed
by the General Counsel, the Union, and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation with an office and place of
business in Columbus, Ohio, has been engaged in the operation
of a beverage warehouse and distribution facility. Annually,
the Respondent, in conducting its business operations described
above, purchased and received at its Columbus, Ohio facility
goods valued in excess of $50,000 directly from points located
outside the State of Ohio.
The Respondent admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that the Union has been a labor organi-
zation within the meaning of Section 2(5) of the Act.

1 All dates are 2015, unless otherwise indicated.
2 Abbreviations used in this decision are as follows: “Tr.” for tran-
script; “GC Exh.” for General Counsel’s Exhibit; “Jt. Exh.” for Joint
Exhibit; and “R. Exh.” for Respondent’s Exhibit, Stip. Exh. for Stipu-
lated Exhibits. U. Brief for Union Brief, R. Brief for Respondent’s
Brief and GC. Brief for General Counsel’s Brief.
3 In making my findings regarding the credible evidence, including
the credibility of the witnesses, I considered the testimonial demeanor
of such witnesses, the context of the testimony, and the consistency and
inherent probabilities based on the record as a whole. In addition, I
have carefully considered the testimony in contradiction to my factual
findings, but I have discredited such testimony.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Respondent operates a beer and wine distribution com-
pany with multiple locations in the State of Ohio. The Re-
spondent has 4 locations that have had existing collective-
bargaining relationships with separate Teamsters Local unions
for long periods of time. Teamsters Local No. 957 (“Local
957”) has represented the Dayton, Ohio facility for over 40
years with the previous collective-bargaining agreement be-
tween the Respondent and Local 957 having expired on March
1, 2015. Teamsters Local No. 20 (“Local 20”) has represented
the Toledo, Ohio facility for approximately 20 years with the
previous collective-bargaining agreement between the Re-
spondent and Local 20 having expired on April 1, 2015. Team-
sters Local No. 293 (“Local 293”) has represented the Cleve-
land, Ohio facility for approximately 20 years with the previous
collective-bargaining agreement between the Respondent and
Local 293 having expired on April 1, 2015. Teamsters Local
No. 1199 (“Local 1199”) has represented the Cincinnati, Ohio
facility for approximately 20 years with the current collective-
bargaining agreement between the Respondent and Local 1199
having expired on April 1, 2016. In addition, Teamsters Local
No. 377 (“Local 377”) was certified as the representative of a
unit of approximately eight delivery drivers at Respondent’s
Youngtown, Ohio facility on October 18, 2013. After negotiat-
ing for approximately 1 year, a decertification petition was filed
and Local 377 was decertified as the bargaining representative
on November 3, 2015. The previous collective-bargaining
agreement between the Respondent and Local 957 expired on
March 1, 2015.
In 2012, the Respondent acquired a distribution facility in
Columbus, Ohio. On February 15, 2013, Teamsters Local No.
284 (“Local 284”) was certified as the collective-bargaining
representative for the Respondent’s Columbus, Ohio, employ-
ees in the following appropriate unit:
All full-time and regular part-time drivers and warehouse em-
ployees employed by the Employer at its Columbus, Ohio fa-
cility, but excluding sales employees, office clerical employ-
ees, maintenance employees, managers, and all professional
employees, confidential employees, technical employees,
sales employees, plant clerical employees, guards, and super-
visors as defined in the Act. (Jt. Exh. 1)
The Respondent and representatives from Local 284 began
negotiating for an initial collective-bargaining agreement on
April 3, 2013. (Jt. Exh. 1.) The parties agreed that each would
have the unilateral right to add to, modify, or delete proposals
throughout the course of the negotiations, subject to an overall
agreement being reached. (Tr. 512–513, 777.) During the ne-
gotiations, the parties reopened executed tentative agreements
(“TAs”) on certain occasions and made modifications to those
TAs, such as with TAs concerning jury duty, leaves of absence,
and bereavement leave. (Tr. 513.) The bargaining continued
until April 2014 without an agreement being reached. In the
summer of 2014, Local 284 and the International commenced a
“corporate campaign” against the Respondent in Columbus that
included publicizing the dispute on a Facebook page, leafleting
Respondent’s customers, the issuance of press releases, and
publicizing health code violations if business with the Re-
spondent continued. (Tr. 525–527, 780–781.)
A decertification petition was filed concerning the Columbus
unit in or around August 2014, and the Respondent withdrew
recognition of Local 284 around August 2014. (Tr. 530) The
Union filed unfair labor practice charges in the fall of 2014 and
a complaint and notice of hearing issued in that case. That
matter was subsequently settled by the parties, wherein the
Respondent agreed to, inter alia, recognize and bargain in good
faith with Local 284, and if an agreement was reached, to sign a
document containing that agreement. (Jt. Exh. 1; Stip. Exh. 2)
That settlement was not joined by the General Counsel, but it
was subsequently approved by Deputy Chief Administrative
Law Judge Arthur Amchan on December 3, 2014. (Stip. Exh. 2,
Tr. 533) As part of the settlement, the parties agreed that by
May 1, 2015, if no agreement had been reached, the decertifica-
tion petition would be unblocked and processed by the NLRB.
2. The parties resume bargaining for a Local 284 collective-
bargaining agreement in January 2015 and the bargaining ses-
sions from January 20 to April 17, 2015
Pursuant to the settlement, bargaining resumed with Local
284 on January 20, 2015. During that time period, Respondent
was also bargaining with Local 377 for an initial collective-
bargaining agreement in Youngstown. In addition, Local 20,
Local 293, and Local 957 had collective-bargaining agreements
that were due to expire in February and March 2015, and Local
1199 had a collective-bargaining agreement that was set to
expire in 2016. Thus, the Respondent was simultaneously ne-
gotiating with Local 20 in Toledo, Local 293 in Cleveland,
Local 377 in Youngstown, and Local 957 in Dayton.
At the time the Local 284 negotiations broke off in Decem-
ber 2014, the Union’s bargaining committee consisted of indi-
viduals from Local 284. However, because the negotiations for
Locals 284 and 377 were not going well, and knowing that
there were three collective-bargaining agreements coming up
for negotiations, the Ohio Conference of Teamsters became
directly involved in the negotiations for those locals, and the
International Brotherhood of Teamsters (the “International” or
“IBT”) was also enlisted to assist and participate in the negotia-
tions. This was the first time the Teamsters incorporated a
state-wide approach to the bargaining of the local contracts, and
where representatives from the various locals were present at
the bargaining sessions for Local 284 and other locations where
bargaining was taking place. (Tr. 783.)
Thus, the negotiations for the Local 284 collective-
bargaining agreement took on a structure that was different
from the 2013 to 2014 bargaining—one which included the
participation and influence of the Ohio Conference of Team-
sters and the International Brotherhood of Teamsters, as well as
representatives from the other locals at the sessions. (Tr. 147–
149.) Specifically, Counsel John Doll became the chief negoti-
ator for Locals 284 and 957 in January 2015. Ohio Conference
of Teamsters Beverage Division Chairman and Local 1199
Secretary-Treasurer Randy Verst and Local 20 Business Trus-
tee Martin Jay also became involved in the negotiations on
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 3
behalf of Local 284. Representatives from other locals also
regularly attended the Local 284 bargaining sessions, such as
Local 293 Principal Officer Max Zemla, Local 293 Recording
Secretary Bruce Osborne, Local 277 Representative Steve
Manzino, and Local 957 Representatives Darrell Paschal, Dan
Webb, and Allen Weeks. Various representatives from other
locals were also involved in separate negotiations for Local 293
in Cleveland, Local 20 in Toledo, Local 957 in Dayton, and
Local 377 in Youngstown, which took place from January 2015
to the end of April 2015. (Tr. 150–152.)
Respondent Counsel Craig Brown served as the Respond-
ent’s chief negotiator from the start of the negotiations in April
2013, and Respondent’s Vice President and General Counsel
Brooke Hice also attended bargaining sessions on behalf of the
Respondent. Prior to commencing negotiations on January 20,
2015, Brown sent Doll a letter describing the status of the nego-
tiations that had ended in April 2014. (Tr. 544, 554.) In that
letter, Brown identified some formal TAs reached by the parties
and approximately seven articles upon which conceptual
agreement was reached in April 2014 based on package pro-
posals that had been exchanged. (Tr. 554–555.) Brown also
identified the three unresolved issues, consisting of wages,
health care, and union security. (Tr. 555.) Doll did not respond,
but in the January 20 bargaining session, Doll advised Brown
that the Union would not recognize the conceptual agreements
because they were part of package proposals, and because the
parties had not agreed on all the terms of the packages, it was
permissible to revert to earlier bargaining positions. (Tr. 556–
557.) With the Union’s position, the unresolved issues then
included wages, health care, union security, duration, manage-
ment rights, grievance/arbitration, no strike/no lockout, and
zipper clause. (Tr. 558–559.)
After Doll became the chief negotiator for Local 284, the
bargaining sessions between the Respondent and Local 284
occurred on January 20, February 11 and19, March 17, April 8
and 9. It is undisputed that the parties remained rigid in their
positions on the larger issues such as union security, manage-
ment rights, no lock out, and contract duration, and that very
little progress had been made in those bargaining sessions.
Brown testified that in a bargaining session on April 17, attend-
ed by President/Chairman of the Ohio Conference of Teamsters
Bill Lichtenwald and Doll, Lichtenwald stated that it was the
intention of the IBT and the Ohio Conference of Teamsters to
force Respondent to accept union security for the Local 284
unit in Columbus. (Tr. 560.)4 However, in that bargaining ses-
sion on April 17, Local 284 made a proposal which Brown
described as “very serious.” (Tr. 41, 145.) Jay testified that
Brown stated that it was an “important package” and that the
Union was working in a good direction. (Tr. 29.2) Brown in-
formed Doll that he would review the proposal with Hice who
was not present at the negotiations that day.
3. The bargaining session on April 29, 2015 and the parties’
subsequent agreement to pursue a “global settlement” with
regard to Respondent’s Ohio bargaining units
On April 29, at a Local 284 bargaining session, Brown re-

4 This testimony was not disputed.
jected the Union’s proposal it had made on April 17, and he
made a counter offer on issues such as duration, management
rights, grievance/arbitration, no strike/no lockout, health care,
wages, and a zipper clause. However, union security for the
Columbus unit remained a sticking point and the parties contin-
ued to bargain without much progress. Since the large commit-
tee format had not successfully narrowed the issues, the Union
suggested a change in the format of the bargaining. (Tr. 567.)
Doll asked to speak with just Brown, Jay and Verst away from
the bargaining table and the committees. In this “subcommit-
tee” the four of them had an off-the-record discussion, where
Doll suggested Union security in exchange for the Union pro-
ceeding with the decertification election in Columbus. (Tr.
569–571.) If the Union was voted in, they would have a collec-
tive-bargaining agreement, and if the Union was voted down,
there would be no contract and the Union would be decertified.
The testimonies of Doll and Jay differed from Brown and
Hice as to whether discussion of a global settlement occurred in
that April 29 session. Doll and Jay testified that the discussion
took place on April 29 while Brown and Hice testified that they
were discussed in a subsequent telephone conversation on May
11. Jay testified that in the April 29 session, elements of a
global settlement were discussed because Brown proposed
different expiration dates for the various locals and he informed
the Union that the Respondent did not want all the agreements
to expire on the same date. Jay also testified that Brown also
mentioned that Respondent wanted the corporate campaign to
be suspended, Local 377 to withdraw its charges, and Local
284 to withdraw the unfair labor practice charges and let the
decertification go forward. (Tr. 346–354.) Jay testified that the
April 29 session ended with an understanding of the terms of a
global agreement and Brown stated “he wanted to tie up loose
ends prior to giving Local 284 a collective-bargaining agree-
ment,” and the Union agreed to that approach. (Tr. 364.)
While the operative facts of this case are essentially undis-
puted, on occasions where the testimony of the General Coun-
sel’s witnesses differed from that of the Respondent’s witness-
es, such as in this instance, as the finder of fact, I must deter-
mine the credibility of these witnesses. Credibility determina-
tions may rely on a variety of factors, including the context of
the witness’ testimony, the witness’ demeanor, the weight of
the evidence, established or admitted facts, reasonable infer-
ences that may be drawn from the record as a whole, and the
inherent probabilities of the allegations. Double D Construc-
tion Group, 339 NLRB 303, 305 (2003); Daikichi Sushi, 335
NLRB 622, 623 (2001) (citing Shen Automotive Dealership
Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx. 516
(D.C. Cir. 2003). Credibility findings need not be all or noth-
ing propositions. Indeed, nothing is more common than for a
judge to believe some, but not all, of the testimony of a witness.
Daikichi Sushi, 335 NLRB at 622; Jerry Ryce Builders, 352
NLRB 1262, 1262 fn. 2 (2008), citing NLRB v. Universal Cam-
era Corp., 179 F.2d 749, 754 (2d Cir. 1950), revd. on other
grounds 340 U.S. 474 (1951). Accord: General Fabrications
Corp., 328 NLRB 1114, 1114 fn. 1 (1999), enfd. 222 F.3d 218
(6th Cir. 2000). See also J. Shaw Associates, LLC, 349 NLRB
939, 939–940 (2007).
My overall observation during the trial was that Respondent
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
witnesses Brown, Hice, Neece, and Oakes were very credible in
their testimony and demeanor, and that they testified in a con-
vincing, straightforward, and consistent manner in which they
displayed an accurate recollection of the details of the events.
Specifically, I found Brown displayed very good recall of the
events and he testified about those events in a sincere and con-
sistent manner. While I find that Brown was particularly per-
suasive, I further find Neece, Oakes, and Hice provided clear,
detailed, and mutually corroborative testimony with regard to
what transpired during the negotiations between the parties. On
the other hand, General Counsel witnesses Doll, Jay, Verst, and
Crawford testified in a less convincing manner. At times,
Doll’s testimony appeared forced and self-serving. Jay, who
had to be directed to answer some questions on cross-
examination (Tr. 385–386.) was evasive with regard to whether
he was aware that Brown and Doll had exchanged different
drafts of the global agreement between May 26 and June 8 (Tr.
375–379), and when questioned about whether the terms of the
global agreement had taken effect. (Tr. 393–395.) In addition,
while Verst and Crawford were not evasive in their testimony, I
nevertheless find their testimony less reliable because they
displayed some difficulty recalling the specifics of certain dis-
cussions that occurred between the parties. (Tr. 427–428, 433–
434, 439–441.) Therefore, in those instances where the testi-
mony of the Respondent’s witnesses conflicts with that of the
General Counsel’s witnesses, I fully credit the testimony of the
Respondent’s witnesses.
Specifically, with regard to when the parties started to dis-
cuss a global settlement agreement, Jay’s notes for the April 29
bargaining session made no mention of a global settlement or
its elements on that date. (Tr. 367.) In addition, the evidence
supports the testimony of Brown and Hice that the global set-
tlement approach was discussed after April 29. In this connec-
tion, Hice testified that when the Union proposed on April 29
that it wanted union security in exchange for a decertification
election in Columbus, she took that idea back to her “executive
team” when she met with them on a date sometime thereafter,
and the Respondent’s executives rejected that offer. (Tr. 787.)
Hice further testified it was in that meeting with the executives
where they determined the Respondent was not going to make a
deal only in Columbus, and that the executives determined
there needed to be a “global deal” involving all the cities and
including the corporate campaign and the Youngstown decerti-
fication where they “wanted everything to be resolved.” (Tr.
788–789.)
Besides the fact that Hice and Brown’s testimonies indicate
the idea for a global agreement occurred after the April 29
meeting, the documentary evidence also supports that assertion.
The record establishes that in an email from Brown to Doll on
May 11, 2015, at 3:36 p.m., Brown indicated that he left Doll a
voice mail message and was preparing a letter to him with the
Respondent’s response, but he had questions regarding the
Union’s proposal that may affect the Respondent’s decision,
and he asked for Doll to contact him to discuss it. (R. Exh. 1.)
On May 12, Doll forwarded Brown’s email to Local 284 Rep-
resentative Paul Suffoleto (with copies to other Local 284 offi-
cials and representative of Locals 1199, 293, 20, and 957) in-
forming them that he received the email from Brown and spoke
to him on May 11, wherein Brown rejected the April 29 pro-
posals, but that Brown indicated “the Company would consider
a ‘global’ proposal from all four locals on the following terms,
if the Locals would make a proposal to the Company.” (R. Exh.
1.) In the email, Doll mentioned some of the terms that would
become the global settlement package, which included Local
284 agreeing to let the decertification proceed and the Compa-
ny agreeing to union security for Local 284, Locals 20 and 957
agreeing to contract extensions to July 7, and Local 377 agree-
ing to withdraw challenges and objections to the decertification
election in Youngstown so that the votes could be counted.
Doll asked the recipients of the email to review those terms so a
response could be provided to the Respondent. (R. Exh. 1.)
Thus, I find that the credible testimonies of Brown and Hice
are supported by Doll’s email which establishes that the idea of
pursuing a global agreement was discussed in detail and forged
on May 11, 2015. Regardless of when it occurred however,
there is no dispute on the content of the discussions. Both par-
ties agreed to pursue a “global settlement” in addition to the
Local 284’s agreement, which would be contingent upon a
global agreement. (Tr. 365, 372.) Brown testified that the Re-
spondent did not want to provide union security for Local 284
in exchange for the decertification vote in Columbus as Doll
had requested, where there were other issues left unresolved
with the Teamsters at its other locations. In May 2015, the
collective-bargaining agreements for Local 20 in Toledo, Local
293 in Cleveland, and Local 957 in Dayton had expired and the
employees were working without contracts; Local 293 actually
reached a tentative agreement in Cleveland, but the Internation-
al Brotherhood of Teamsters Beverage Division would not
allow for the required approval of that contract before the
members could vote to ratify that agreement;5 Local 377 had a
decertification election held and unfair labor practice charges
had been filed to block the counting of the ballots; and the In-
ternational was in the course of a corporate campaign against
the Respondent where it was leafleting its customers and sup-
pliers, including the February 2015 leafleting of the National
Hockey League All Star game in Columbus. Brown therefore
proposed that Local 377 withdraw its unfair labor practice
charges and objections to the decertification election in
Youngstown so that the ballots could be counted and a deter-
mination could be made on whether Local 377 would be decer-
tified. Brown proposed that the International approve the tenta-
tive agreement with Local 293 in Cleveland so that the mem-
bership there could vote to accept that tentative contract.
Brown also proposed extension agreements to the Locals 957
and 20 collective-bargaining agreements, and an end to the
International “corporate campaign,” which, at the request of
Local 284, was being waged against Respondent to exert pres-
sure on the Respondent by leafleting and protesting to the Re-
spondent’s customers. (Tr. 169–171.) Thus, the record estab-
lishes that the April 29 session ended without agreement, but
that the parties subsequently reached agreement on or around
May 11 to pursue a global settlement or package proposal, and
Doll testified that “. . . from the Union’s perspective, we knew
that to get a deal, that was going to be a global.” (Tr. 166–167.)

5 Tr. 174–175.
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 5
4. The May 26, 2015 bargaining session over the Columbus
collective-bargaining agreement and the global settlement
On May 26. the parties met at the Local 284 office to contin-
ue bargaining for a collective-bargaining agreement in Colum-
bus and for a global settlement. Brown and Hice were present
for the Respondent and Doll, Jay and Verst attended on behalf
of Local 284. The parties discussed the global concepts and
Brown talked about the Respondent’s goals as far as the expira-
tion dates for the contracts and he discussed the expiration
dates for all of the local contracts. (Tr. 431.) Brown stated that
Respondent’s core objective was not to have coterminous con-
tract expiration dates for Dayton, Cincinnati, and Columbus
because they were significantly larger operations covering the
southern half of the state. However, he stated that Cleveland
and Toledo could expire in the same year. (Tr. 590–592.)
Brown also stated that Respondent wanted the corporate cam-
paign to end, and the Union agreed to request that the Interna-
tional stop its corporate campaign, and stated that if the request
was made, the International would honor it. Brown proposed
that the Teamster agree not to organize certain non-union loca-
tions, but Verst and Jay immediately replied that they would
not consider that proposal. For Local 284, Brown proposed a
2-year contract, but Doll refused. (Tr. 60.) The Union proposed
an expiration date of November 1, 2018, for Columbus and
Respondent proposed an expiration date of February 2019. The
Respondent agreed that the Union could have union security in
the Columbus contract if the Union agreed to withdraw its chal-
lenges to the decertification petition and allow that election to
go forward. The parties agreed to extend the contracts for Lo-
cal 20, 293, and 957. The Respondent requested that Local 377
be a part of the global settlement by withdrawing its objections
and unfair labor practice charges, but the Union responded that
Local 377 would not be a part of it.
The bargaining notes of all the parties reflect that by the end
of the day, there were two remaining issues—wages and
whether Local 377 would be a party to the global agreement.
At the conclusion of that bargaining session, the Union accept-
ed the Respondent’s proposal on wages and the Respondent
agreed that Local 377 would not be a part of the global settle-
ment agreement. Brown testified that there was an understand-
ing on principle or a framework, but the details of the agree-
ment had to be drafted. (Tr. 606.) Brown agreed to memorial-
ize the agreement in writing and no additional bargaining ses-
sions were scheduled for Local 284.
5. The parties issue negotiation updates or letters to the em-
ployees/members
While Doll testified that the parties had an agreement on the
Local 284 collective-bargaining agreement and a global settle-
ment (Tr. 73), Brown testified that “what we had was an under-
standing in principle on the framework, if you will, the princi-
ple components of a global settlement agreement.” (Tr. 606.) It
is undisputed that nothing that was discussed had been reduced
to writing, and the parties did not sign off on or initial any ten-
tative agreements. (Tr. 178, 362.) As Jay testified, “we had
nothing in writing on the 26th” (Tr. 362). It is equally undis-
puted that the Local 284 collective-bargaining agreement was
contingent upon the global settlement or agreement. (Tr. 178;
362.)
Following that bargaining session and prior to Doll seeing a
draft of the global settlement agreement and the terms of the
global agreement being reviewed and finalized by the parties,
the Union issued a “Negotiation Update” dated May 26, 2015,
to the unit employees stating that a tentative agreement had
been reached for the Columbus bargaining unit on May 26. (Tr.
227–229; GC Exh. 7.) The Negotiation Update touted aspects
of the Local 284 agreement such as guaranteed wage increases
and its effective date through February 9, 2019. That docu-
ment, however, essentially campaigned for the members’ sup-
port in the anticipated decertification election, but made no
mention of the global settlement agreement.
Brown and Hice both testified that they believed the Union
Negotiation Update to employees was premature and that there
was no agreement on all the terms. (Tr. 804.) Nevertheless,
Hice drafted her own handout to employees, and Brown re-
viewed it and modified it prior to its issuance. (Tr. 611; 833–
834.) That handout, dated May 28, 2015, and signed by Re-
spondent Executive Vice President and General Manager Greg
Maurer, states that he had “great news” to report that the parties
reached a “Tentative Agreement” for a first contract in Colum-
bus. (Stip. Exh. 6.) In that handout, the Respondent did not
mention the global settlement agreement, nor did it discuss the
details of the terms of the Local 284 agreement. Instead, like
the Union, the Respondent focused the handout on its own
campaign to prevail in the anticipated decertification election.
In that connection, the handout explained that the tentative
agreement would provide for a vote in the decertification elec-
tion to decide if the Union would continue to represent them,
and if the majority of the employees voted no in the decertifica-
tion election, the contract negotiated with the Union would be
meaningless and the Union would no longer represent them.
Brown testified that the global settlement and its details were
not discussed in the letter because it involved the other facilities
and Hice also testified that the global settlement was not dis-
cussed because the employees did not know about it. (Tr. 612–
613, 807.)
6. Brown provides Doll with a proposed Global Settlement
Agreement and a draft of the Local 284 collective-bargaining
agreement on May 29, and a revised Global Settlement Agree-
ment on June 2, 2015
In an email dated May 29, 2015, Brown provided Doll with a
copy of “a proposed Settlement Agreement and Release incor-
porating the terms negotiated on Tuesday, May 26, 2015”
which had attachments consisting of the global settlement
agreement and release and a draft of the Local 284 collective-
bargaining agreement. (Stip. Exh. 7.) In an email from Brown
to Doll on June 2 at 11:33 a.m., Brown attached a revised “pro-
posed Settlement Agreement & Release” wherein he corrected
a “mistaken reference” to “Local 20” in paragraph 6 that should
have referenced “Local 957.” (Stip. Exh. 8.)
The Respondent’s revised proposed Global Settlement
Agreement provided to the Union on June 2, 2015, stated as
follows:
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Settlement Agreement and Release
Dayton Heidelberg Distributing Co. (the “Compa-
ny”) and the International Brotherhood of Teamsters
(the “International Union”), the International Brotherhood
of Teamsters Local Union No. 284 (“Local 284”), the In-
ternational Brotherhood of Teamsters Local Union No.
957 (“Local 957”), the International Brotherhood. of
Teamsters Local Union No. 20 (“Local 20”), the In-
ternational Brotherhood of Teamsters Local Union No.
293 (“Local 293”) and International Brotherhood of
Teamsters Local Union No. 1199 (‘‘Local1199”) (col-
lectively, the “Unions”) hereby enter into this Agree-
ment and agree as follows:
l. Contingent upon the complete satisfaction of all
the terms of this Settlement Agreement the Company
and Local 284 have entered into a tentative agree-
ment for an initial Collective Bargaining Agreement,
subject to the outcome of the decertification election in
Case No. 09–RD–134933 which is currently pending
in Region 9 of the National Labor Relations Board
(“Region 9”) as more fully set forth below in paragraph 2
of this Settlement Agreement. A true and accurate copy
of the initial contingent Collective Bargaining
Agreement is attached hereto as Exhibit 1.
2. The Company, the Petitioner and Local 284 will
enter into a Consent Election Agreement in Case No.
09–RD–134933 for the purpose of conducting a decerti-
fication election among a bargaining unit of drivers and
warehouse employees as defined in Case No. 09–RC–
095648. This Settlement Agreement is contingent upon
the Regional Director for Region 9 approving the Con-
sent Election Agreement without conducting any pre-
election hearings or investigative proceedings and
scheduling the decertification election to occur on or
before July 3, 2015. The International Union and Local
284 further agree to waive any and all pre-election
challenges, objections or charges and further agree not to
challenge the decertification petition filed in Case No.
09–RD–134933 on the grounds of authenticity, suffi-
ciency or raise any allegations of unlawful conduct by
the Company or the Petitioner in support of the de-
certification petition or petitioners; hereby expressly
agreeing that the petition is authentic and sufficient to
support the decertification petition and that neither the
Company nor the Petitioner engaged in any unlawful
conduct in support of the petition or the petitioners.
3. Local 284 agrees to withdraw with prejudice any
and all pending unfair labor practice charges and agrees
not to file or re-file any unfair labor practice charges
against the Company regarding any events which occurred
prior to the execution of this Agreement.
4. The International Union and Local 284, Local
957, Local 20, Local 293 and Local 1199 agree they will
immediately suspend any and all current corporate cam-
paign activities directed at the Company, including any
negative publicity through all media including social
media and all negative communication or approaches re-
garding the Company directed to the Company’s cur-
rent and potential customers and suppliers and further
agree to refrain from engaging in any and all future
corporate campaign activities directed at the Company,
including any negative publicity through all media in-
cluding social media and all negative communication
or approaches regarding the Company directed to the
Company’s current and potential customers.
5. Local 20 agrees to extend its current Collective
Bargaining Agreement with the Company through July
10, 2015, by entering into the Extension Agreement which
is attached hereto as Exhibit 2. Further, Local 20 agrees
that any new Collective Bargaining Agreement between
Local 20 and the Company will expire April 1, 2019.
6. Local 957 agrees to extend its current Collective
Bargaining Agreement with the Company through July 10,
2015, by entering into the Extension Agreement which is
attached hereto as Exhibit 3. Further, Local 957 agrees
that any new Collective Bargaining Agreement between
Local 957 and the Company will expire March 1, 2018.
7. Local 293 agrees to extend its current Collective
Bargaining Agreement with the Company through July 10,
2015, by entering into the Extension Agreement which is
attached hereto as Exhibit 4. Further, Local 293 agrees
that any new Collective Bargaining Agreement between
Local 293 and the Company will expire April 1, 2019.
8. Local 1199 agrees that any new Collective Bargain-
ing Agreement between Local 1199 and the Company to
replace the Collective Bargaining Agreement expiring
April 16, 2016, will expire in April 2020.
9. The International Union agrees that it will approve
the Tentative Agreement between the Company and Local
293 and that Local 293 will be permitted to proceed to rat-
ification.
10. The Unions, without limitation, hereby irrevoca-
bly and unconditionally release and forever discharge the
Company, its board of directors, officers, employees, rep-
resentatives, shareholders, attorneys, parents, subsidiaries,
affiliates, insurers, successors, and agents (“Releasees”),
from any and all charges, complaints, claims, causes or
action, debts, damages, and liabilities of any kind or nature
whatsoever, both at law and equity, known or unknown,
suspected or unsuspected, arising from conduct occurring
on or before the date the Unions execute this Agreement
(“Release”). The Unions further understand that through
this Release, they are releasing any claim any of them may
have for any relief whatsoever, including monetary, in-
junctive, or declaratory relief, whether direct or indirect,
whether under federal law or the law of any state, whether
brought by it or its own behalf, or on behalf of any other
party, governmental agency or otherwise, and further
agree not to institute any claim for damages, injunctive re-
lief or any other remedy through any administrative,
grievance or legal proceedings against the Company. The
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 7
Unions further understand that through this Release they
are waiving and releasing any and all rights to monetary
damages or other legal or injunctive relief awarded by any
governmental agency related to any charge or other Claim
arising out of or occurring on or before the date the Unions
execute this Agreement. (Stip. Exh. 8)
The global settlement agreement then provided signa-
ture sections for the Respondent, the IBT, Local 284, Lo-
cal 957, Local 20, Local 293, and Local 1199. Brown tes-
tified that he believed the drafts reflected the understand-
ings reached in the May 26 meeting. (Tr. 615) For exam-
ple, he testified that he included the IBT as a party because
it was orchestrating the corporate campaign that would
cease as a result of the global settlement. (Tr. 617–619.)
7. Doll takes issue with Brown’s proposed Global Settlement
Agreement in an email dated June 3, 2015
Doll responded to Brown with an email dated June 3 at 8:33
a.m. where he informed Brown that he was “still reviewing the
proposed collective bargaining agreement” and would get back
to him as soon as possible with any questions or concerns.
However, Doll did inform Brown that the global settlement
document that was initially sent, and the revised document that
followed, did not comport to his understanding of the terms of
the global settlement. Doll informed Brown that there were
areas on which there had been no discussions and/or on which
no agreement was reached on May 26. Specifically, Doll in-
formed Brown that in the first (unnumbered) paragraph, Local
1199 was not to be part of any global agreement and Randy
Verst participated in the negotiation sessions as Co-Chair of the
Ohio Conference of Teamsters Beverage Division and not as a
representative of Local 1199. For that reason, Doll stated that
there was no agreement that Local 1199 should be included in
paragraph 8 of the global settlement agreement. Doll stated
that in paragraph 3, there was no agreement that the election on
the pending petition would be conducted on or before July 3,
2015, and that there was no agreement that the IBT would be a
party to the global settlement agreement. In paragraph 4, Doll
asserted that there was no agreement to include the IBT and
Local 1199. Doll also stated that there was no agreement on
the expiration dates for the collective-bargaining agreements
for Local 20 and Local 957 in paragraphs 5 and 6, respectively.
Finally, Doll stated that there was no agreement that a release
would be signed by “any party to the ‘global’ settlement pro-
posal by the Company.” Doll then asked that Brown forward a
“word version” of the Company’s proposed settlement agree-
ment so he could submit a counter to Brown’s document. (Stip.
Exh. 9.)
8. The email communications between Brown and Doll on June
3 and 4, concerning their disagreement over what was agreed to
on May 26, 2015
In an email from Brown to Doll dated June 3, 2015, at 3:55
p.m., Brown stated that he felt compelled “to respond on behalf
of the Company to the serial misrepresentations and falsehoods
contained in your correspondence.” (Stip. Exh. 10.) Brown
claimed that agreement had in fact been reached on the various
matters Doll disputed in his June 3 email. Brown disagreed
with Doll’s assertion that Local 1199 was not a party to the
proposed global settlement agreement because Verst was pre-
sent on behalf of Local 1199 and the parties knew the Respond-
ent’s stated core objective to avoid coterminous contract expi-
ration dates, which involved Local 1199 and its contract with
the Respondent. (Tr. 205–206, 622–623.) Brown therefore
asserted his belief that Verst could act on behalf of Local 1199.
(Tr. 624.) Brown also reiterated Respondent’s proposed expi-
ration dates for its other Ohio locations, demonstrating its core
objective to avoid coterminous expiration dates in Dayton,
Columbus, and Cincinnati. (Stip. Exh. 10, Tr. 625.) In his
email, Brown stated that his draft constituted the Respondent’s
proposal for a global settlement and that differences with lan-
guage and mutual understanding could be resolved. However,
he also noted that if Doll chose to completely disregard the
Respondent’s stated objectives for entering a global settlement
and other core substantive terms as identified in his email, they
would be unable to resolve the dispute in that manner. (Stip.
Exh. 10.)
In an email dated June 4 to Brown, Doll noted again that no
agreement had been reached on May 26 for the expiration dates
for the local unions other than for Local 284, and he asserted
that Brown merely discussed those dates as part of Respond-
ent’s plan for negotiations with those locals. (Stip. Exh. 11.)
9. The bargaining session on June 8 in Dayton for a Local 957
contract and for the global settlement agreement
On June 8, a bargaining session was held in Dayton for the
purpose of negotiating a collective-bargaining agreement for
Local 957. Doll, Jay, and Verst were present for Local 957,
and Brown and Hice were present for the Respondent. The
smaller group actually had two meetings away from the bar-
gaining table that day where they discussed the details of the
global settlement agreement. In the first meeting, Doll again
informed Brown that the IBT and Local 1199 would not be
parties to the global agreement, and he explained that if Local
284 requested that the IBT stop its corporate campaign, it
would stop. Doll also raised the issue that Respondent was
required by law to permit voluntary payroll deductions for the
IBT’s political action committee in the union security clause
(referred to as D.R.I.V.E.) since it permitted payroll deductions
for other political action committees. Doll noted that he had
not completed review of the Local 284 agreement, but noted
that there was no language in the agreement regarding
D.R.I.V.E. (Tr. 634.) Brown responded that the parties had not
agreed to include language addressing a voluntary payroll de-
duction to D.R.I.V.E. Doll then stated that its inclusion was
necessary if the Respondent allowed other voluntary contribu-
tions to PACs. (Tr. 634.)
Doll then sent Brown a counter proposal on the global
agreement in the form of an email with an attached “Union’s
revised Settlement Agreement for the Company’s considera-
tion.” (Stip. Exh. 13, Tr. 626.) The subject line of the email
stated: “Local 284 Draft SA 6-8-15” and it included Doll’s
revision of Brown’s global settlement draft. Doll revised this
document after his discussion with Brown that morning, where-
in he removed the IBT as a party to the global agreement, but
declined to add Local 293 as Brown had requested. (Tr. 636–
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
638.) Paragraph 1, which was drafted and proposed by the
Respondent, contained explicit language regarding the contin-
gent nature of the Local 284 contract and it was unchanged by
the Union. (Tr. 629, 814.) The Union proposed an “Execution
Clause” that explicitly provides that the global settlement
agreement, “the Consent Election Agreement, the contingent
Collective Bargaining Agreement between the Company and
Local 284, the Extension Agreement between the Company and
Local 20 and the Extension Agreement between the Company
and Local 957 will be signed and become effective on the same
date.” (Stip. Exh. 13.) This Execution Clause was modified
only to add Local 293 to it and it remained in every subsequent
draft proposal of the global settlement agreement.
In the second subcommittee meeting on June 8, which oc-
curred at 4:45 p.m., Brown raised the issue of Local 377. As
mentioned above, there had been a decertification election held
in Youngstown regarding Local 377. However, the ballots
were impounded because there were unfair labor practice
charges filed which blocked the processing of the petition. At
some time between May 26 and June 8, the charges were dis-
missed and it became unblocked, and the ballots from the Local
377 decertification petition were opened and counted, revealing
that Local 377 lost the election. In that afternoon meeting on
June 8, Brown learned that Doll filed objections on behalf of
Local 377 to the decertification election in Youngstown. Doll
testified that Brown became very upset about the fact that he
filed the objections. Brown then handed Doll a revised draft of
the global agreement that was a counter to the proposal Doll
had given Brown by email earlier that day. Brown also emailed
that proposal to Doll at 5:17 p.m. that day, in which Brown
added Local 377 as a party to the agreement. (Stip. Exh. 14.)
This was the Respondent’s last counter proposal of the day,
which corrected typographical errors in the prior draft and pro-
vided Respondent’s response to Doll’s counter proposal. (Tr.
654) The Respondent also added language requiring Local 284
to request that the IBT cease the corporate campaign. (Tr. 655–
656, Stip. Exh. 14.) Brown specifically added the language in
Paragraph 4 regarding the cessation of the corporate campaign
to not only suspend it, but to also refrain from initiating all
corporate campaign activities. (Tr. R. Exh. 9, Tr. 649–650.)
The counter proposal also shows that Respondent rejected the
Union’s counter proposal regarding the “all” and “in any way”
language related to the corporate campaign and the removal of
Local 377 from the global agreement. (Stip. Exh. 14, Tr. 656.)
The meeting adjourned without an agreement and no TAs were
initialed or signed. (Tr. 814–815) Thus, the Respondent and
the Union went “back and forth” on the global agreement and
exchanged drafts a couple of times that day. (Tr. 434.)
On June 9 and 18, the parties met to negotiate the Local 957
agreement in Dayton and only that agreement was discussed.
There were no further scheduled meetings with Local 284 after
the May 26 bargaining session in Columbus. From the time
that the Union was provided Respondent’s draft proposal of the
global settlement agreement on June 8 at 5:17 p.m. (Stip. Exh.
14) through the start of the day on June 19, the Union had not
provided a response to Brown’s global settlement proposal.
10. The Local 957 negotiations on June 19 in Dayton where the
smaller subcommittee discussed the global agreement
On June 19 the parties met again in Dayton to bargain for the
Local 957 contract. There were full committee meetings and
several separate smaller group meetings with Doll, Jay, and
Brown (Verst and Hice were not present). In a smaller group
meeting in the beginning of that day of bargaining, Brown
asked Doll for a counter proposal to Respondent’s June 8 pro-
posal for a global agreement (Stip. Exh. 14.) Doll testified that
at that time of Brown’s request, the global agreement “had not
been finally agreed to.” (Tr. 266–267.) Brown spoke initially
with Jay that morning and conveyed to him the need for a re-
sponse to his global settlement proposal and his concern for a
possible strike by the Teamsters. Brown’s message to Jay was
that he hadn’t heard from him on the global agreement, and the
Respondent believed the Teamsters were planning a strike for
July 4 to create leverage. (Tr. 662.) Brown also conveyed that
he was going to assume the Union did not want to go forward
on the global agreement, and the Respondent was going to pre-
pare to spend a lot of money on security for the strike. (Tr.
662–663.) Brown testified that Jay informed him that the Un-
ion would like to get a global settlement, and that the Union’s
failure to respond should not be “misread” because the Union
would like to “do this if we can” and that they would “turn
[their] attention to it.” (Tr. 663.)
During a caucus, at 11:21 a.m. Brown sent an email to Doll
where he conveyed that same message and his desire for the
Union’s response to his global settlement proposal and his con-
cern for an impending strike. (Tr. 267; 661–662.) In that email,
Brown informed Doll:
I shared this with Martin Jay, and I am sure he told you, but
without a Global Settlement very soon (early afternoon at the
latest) the Company will be forced to make very expensive
decisions to prepare for likely picketing next week. If that
happens, settlements of any kind along the lines we have been
discussing become increasingly unlikely. So, if the Union
remains interested in a Global Settlement, now is almost too
late to have those discussions. You have had the Company’s
proposal for 10 days, and frankly, some in the Company be-
lieve the lack of response is intentional because the Union is
not genuinely committed to a Global Settlement and is using
the process to delay and pressure the Company. This has
eroded support for a Global Settlement in some quarters with-
in the Company. (GC Exh. 9.)
The record is devoid of any evidence that either Doll or Jay
responded to Brown with the assertion that the parties had al-
ready reached an agreement on a global settlement agreement
on May 26. Instead, Doll emailed a global agreement counter
proposal to Brown entitled “Local 284 Proposed SA—June 19,
2015,” which Doll had prepared. (Stip. Exh. 15.) Doll’s coun-
ter proposal added in a provision from Brown’s June 8 proposal
about Local 293 being permitted to vote on the tentatively
agreed upon contract, but omitted reference to Local 377. (Stip.
Exh. 15.) Brown, Doll and Jay discussed the Union’s counter
proposal. The proposal from Local 284 made modifications to
the Respondent’s last proposal of June 8. (Tr. 665, 671.) Doll
proposed a July 17 date to finalize a consent election agreement
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 9
regarding the decertification election for Local 284. In para-
graphs 2 and 4, the Union rejected the Respondent’s proposal
regarding limits to and the cessation of the corporate campaign,
specifically those directed at current and potential customers
and suppliers, and requiring Local 284 to refrain from corporate
campaign activities (in addition to suspending them). (Tr. 666–
667.) Doll also rejected the proposal that the corporate cam-
paign cease until the certification of the decertification election
results and proposed again that the cessation only last until the
date of the decertification election. (R. Exh. 12, Tr. 676.) Doll
again added the language: “all lawful conduct” and “in any
way” to broaden permissible election campaign conduct, which
the Respondent had previously rejected because it suspected
they created loopholes for the Union to continue the corporate
campaign. (Tr. 667.) Finally, Doll proposed extending the
contracts with Local 20, Local 293, and Local 957 to July 17
and removed the Respondent’s proposed automatic 7-day ex-
tension beyond the date of a decertification election for Local
284 if the election occurred after the extensions expired. (Tr.
667–668.) While Doll’s proposal added Local 293 as a party, it
also removed Local 377 as a party and any reference to the
withdrawal of objections in that decertification election. (Tr.
665–668.)
Doll testified that Brown stated “that’s okay” to the various
changes that Doll made to Brown’s June 8 draft. (Tr. 88 How-
ever, Brown made changes to Doll’s proposal and he indicated
that he would run the proposal by Hice to get her approval. He
indicated that he would let them know if there was a problem.
(Tr. 319–321.) Brown testified that he made some minor edits
to the document, but that his proposal about the Teamster’s
corporate campaign being suspended was a substantive change
as it was a core issue for the Respondent. (Tr. 676–677.) In
addition, Brown testified that he believed there was no meeting
of the minds on the terms of the global agreement as he had not
yet conferred with his client to approve the changes and the
differences on his copy of the counter proposal had not been
accepted. (Tr. 679–680.)
The parties then turned to the Local 957 contract. (Tr. 680.)
Throughout the day on June 19, the Respondent had been pro-
posing a 3-year contract for Local 957 expiring on March 1,
2018, and the Union had been proposing a 4-year contract ex-
piring in 2019. (Tr. 89.) Respondent even offered higher wages
for Local 957 unit employees if they would agree to a 3-year
contract, but Local 957 rejected the additional money and in-
sisted on having a 4-year contract.
Brown testified that he suspected the Ohio Conference of
Teamsters was lining up expiration dates for the various collec-
tive-bargaining agreements for the purpose of bargaining lever-
age, and that the Respondent was opposed to those expiration
dates. (Tr. 683) Local 957 Chief Negotiator Darrell Paschal
spoke to Brown that day about the fact that he heard Brown did
not believe Local 957 wanted a 4-year contract. (Tr. 685–686.)
Brown told him that he doubted it because it was against Local
957’s best interest. However, Paschal assured Brown that Lo-
cal 957 wanted a 4-year agreement and that it had nothing to do
with Columbus which tentatively had a 4-year expiration date,
adding “why should [Local 957] sacrifice 1 year of labor peace
for Columbus?” (685–686) The Local 957 negotiating commit-
tee also came to the room Brown was in and informed him that
they wanted a 4-year agreement to 2019 for Local 957. Neece
testified that the Union committee, besides stating that they
wanted a 4-year contract, also stated that the Respondent
should change the expiration date of another city’s contract.
(Tr. 732–733.)6
Brown left to talk to Hice on the phone, informing her that
Local 957 had to have a 2019 contract in Dayton. Brown, Re-
spondent Wine Operations Manager Terry Neece, and Beer
Operations Manager Brian Oakes testified that when they spoke
to Hice by phone that day, she conveyed that either Columbus
or Dayton could have a 4-year contract, but not both of them.
Hice also testified to that fact that she informed Brown that if
the Teamsters wanted a contract in Dayton to 2019, then the
Columbus contract would have to be changed to 2018.
Towards the end of the negotiations on June 19, Jay informed
Brown that there would be no Local 957 Dayton contract if the
global settlement agreement was not finalized
Brown testified that while he was in the process of putting
together the Respondent’s final proposal for the Dayton con-
tract, he was in the hallway of the Local 957 offices with Neece
and Oakes and he saw Jay in the hallway lounge area sitting on
a couch. Jay asked Brown if he had heard anything from Hice
on the Union’s global settlement proposal and Brown stated
that he had not. Jay then told Brown that “we have to wrap up
this global settlement,” and that without a global settlement,
there would be no contract in Dayton. (Tr. 692–693.) Brown
responded that he understood. Both Neece and Oakes corrobo-
rated Brown’s testimony in this regard, with Neece and Oakes
specifically testifying that Jay told Brown that if they did not
have a global settlement done, there was no contract for Day-
ton. (Tr. 736–738, 575–759.)
12. Brown informs Local 957 of the risks for
coterminous contracts
Thereafter, Brown returned to the Union committee and told
them “I got you your four-year deal,” (Tr. 90, 322) and he pre-
sented the Union with a last, best and final offer for Dayton that
included an expiration date of March 2, 2019. (Tr. 91, GC Exh.
10) As Brown presented the written version contract to the
Union committee, he stated that he was making the proposal for
a 4-year contract in Dayton knowing that the expiration date
lined up with some of the other contracts, and he was taking a
risk in doing this, but stated that he believed the Teamsters
would operate in good faith and that Respondent would not
again experience the problems that it had experienced in this
round of negotiations. (Tr. 92, 448.)
Brown credibly testified that the Respondent agreed to ex-
tensions of the three collective-bargaining agreements in Day-
ton, Toledo, and Cleveland all expiring simultaneously in 2019,
and that he may have made such a statement about risks of
those contracts expiring simultaneously. Oakes credibly testi-

6 This testimony was also corroborated by Oakes, who testified that
the Union committee conveyed that they had a “mature bargaining
relationship” where they always had a 4-year collective-bargaining
agreement, and that “if somebody needs a three-year contract, give it to
somebody else.” (Tr. 755.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
fied that Brown stated the Respondent was at risk lining up
contracts that would be expiring at the same time, and he was
specifically referring to the Dayton contract with the Cleveland
and Toledo contracts. (Tr. 757–759.) In addition, Brown testi-
fied that he assumed from comments Doll made during that
session that the Teamsters would agree to a Cincinnati contract
which expired in 2020, and he had approval from Hice to flip
the Columbus expiration date from 2019 to 2018. (Tr. 695.)
13. At the conclusion of the June 19 bargaining session, Brown
revised the expiration date of the contract proposal for Local
284 in Columbus to avoid coterminous expiration dates
Thus, after presenting the Local 957 contract, Brown told
Doll that he needed to talk to Doll and Jay separately and asked
them to accompany him to a separate conference room. Doll
and Jay were accompanied by Doll’s law associate, Matthew
Crawford, and they met with Brown. Brown told them that
there was an important component to the overall global agree-
ment that concerned Local 284, and he needed to draw their
attention to it. Brown informed them that since Dayton was
given a 2019 contract, the Respondent modified its position on
the Columbus contract by going to a 2018 expiration date. (Tr.
700.) At that time, he gave them a sheet of paper which re-
flected an expiration date to the tentatively agreed to Local 284
contract to February 9, 2018, which was a 3-year contract. Doll
and Jay informed Brown that the parties had an agreement on
the Columbus contract and that he could not change the expira-
tion date, and Jay informed Brown that he was reneging on
their agreement. Brown became angry and slammed his hand
onto the table and began cursing at the Union representatives,
maintaining that the Respondent could change its proposal for
the duration of the contract. Brown then pulled the Respond-
ent’s representatives out of the bargaining and the Local 957
negotiations ended.
Shortly thereafter, Brown returned to talk to Doll and Jay,
and he apologized for his outburst, but he informed them that
the duration for Local 284 could not be a 4-year deal. (Tr. 328.)
Jay testified that Brown told them that Local 957 could have a
4-year contract if Local 284 took a 3-year deal, but Jay’s re-
sponse was “no, it’s 4 years for both. (Tr. 329, 705.)
14. The events following June 19, 2015
Following the June 19 bargaining session, the Teamsters
handbilled Respondent’s customers on June 22. In addition, on
June 22, Doll emailed Brown and informed him that Local 957
had ratified the collective-bargaining agreement and that the
global settlement agreement needed to be completed and he
requested that Brown forward the document to he and Jay.
(Stip. Exh. 17.)
In an email dated June 24, Brown replied to Doll’s email
stating that there was not a global settlement since Local 284
had not agreed to change the expiration date of its collective-
bargaining agreement as proposed on June 19. (Stip. Exh. 18.)
Brown noted that the Respondent had withdrawn provisions in
the global settlement which would have staggered the expira-
tion dates for the various locals in lieu of a strategy to bargain
staggered expiration dates with the various locals, and Brown
stated that it appeared the parties “may be at impasse.” (Stip.
Exh. 18.)
In an email dated June 25, Doll responded to Brown, re-
counting his version of the events of May 26 and June 19. (Stip.
Exh. 19.) In an email dated July 2, Brown responded to Doll
by recounting his version of events. (Stip. Exh. 20) Brown
agreed that the parties left the May 26 meeting with “an under-
standing that they had negotiated a conceptual Global Settle-
ment.” (Stip. Exh. 20, p. 6.) On page 3 of his email, Brown
recounts that when he proposed a 2-year contract for Local 284,
he pointed out the need to stagger the expiration dates in Co-
lumbus, Cincinnati, and Dayton and expressly listed “the antic-
ipated expiration dates [for Cincinnati, Dayton, Cleveland and
Toledo].” Brown then expressed that Respondent had no inter-
est in entering into a global settlement if Local 284 was reject-
ing its new proposal for a 3-year contract in Columbus. (Stip.
Exh. 20, p. 9.)
On July 11, Local 284 voted to ratify the contract for the Co-
lumbus bargaining unit. Brown informed Doll that he should
not submit that agreement for ratification because it had been
withdrawn. (Tr. 283.) On July 13, Doll advised Brown in writ-
ing that the agreement had been ratified and that the Union was
prepared to enter into a stipulated election agreement on the
decertification petition as soon as Respondent signed the
agreement. (Stip. Exh. 24.) The global settlement agreement
was never presented to the Respondent for signature, and it was
never signed. (Tr. 711.) In addition, the Respondent never
signed the ratified Columbus contract, and Respondent reverted
to its position on April 29, 2015, prior to its discussions of a
global agreement. (Stip. Exh. 23 and Stip. Exh. 25.)
B. The Contentions of the Parties
The General Counsel and the Union allege that on May 26,
the parties reached a meeting of the minds on the terms of a
collective-bargaining agreement for Local 284 as well as for a
global agreement. The General Counsel argues that the testi-
mony and bargaining notes of all those involved demonstrate
that by the end of the day, the only remaining issues were the
wage schedule and whether Local 377 would be a party to the
agreement. Those issues were then resolved when the Union
agreed to the Respondent’s proposal on wages and the Re-
spondent agreed to go forward without Local 377, and no addi-
tional bargaining sessions were scheduled for Local 284.
The General Counsel further argues that even though Brown
and Hice testified that they were dismayed that the Union is-
sued its negotiation update prematurely, the Respondent’s up-
date to the employees did not caution employees that the
agreements had not been finalized. Likewise, the Union argues
that Respondent’s update to employees shows that Respondent
was “advising the bargaining unit employees that a ‘meeting of
the minds’ had been reached on the ‘global settlement’ that
incorporated the agreement between Respondent and Local 284
that a decertification election would be held without any further
delay caused by the pending unfair labor practice charges.” (U.
Brief at p. 17.)
In addition, the General Counsel and Union assert that when
Brown reduced the agreements to writing, his draft of the Local
284 contract was exactly as the parties agreed. However, they
argue that in his draft of the global settlement agreement and
release, he added items that were “never discussed or agreed
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 11
to” in the May 26 bargaining session, specifically setting forth
the expiration dates for the contracts of Local 957, 293 and
1199, adding the IBT as a party, adding Local 1199 as a party,
setting a deadline for the decertification election, and adding a
“release.” (GC Br. p. 13; U Br. p. 17.) Therefore, the General
Counsel and the Union allege, as plead in the complaint, that
the parties reached agreements on both the Local 284 contract
and the global settlement agreement on May 26, and the Re-
spondent thereafter never executed such agreements in viola-
tion of Section 8(a)(5) and (1) of the Act.
The General Counsel further argues that on June 19 the ne-
gotiations were “back on track” and Doll presented his proposal
for the global which added in Local 293 as a party, provided
that Local 293’s tentative agreement would be approved by the
IBT for a ratification vote, and added a deadline for a decertifi-
cation election for Local 284. The General Counsel alleges that
Brown expressed agreement with the terms of the Union’s pro-
posal, expressing a desire to make minor, non-substantive
changes to the agreement and to run it by Hice for approval.
However, the General Counsel asserts that just because minor
terms were discussed by the parties and language modified after
May 26 does not suggest that a meeting of the minds did not
occur. Furthermore, the General Counsel asserts that when
Brown proposed the 4-year Dayton contract and commented
about the risk of agreeing to 4-year contracts at multiple loca-
tions, he “tacitly acknowledged that if the Dayton proposal
were to be accepted, Respondent would be subject to 4-year
contracts in both Dayton and Columbus.” (GC Brief p. 15)
Thus, even though not plead in the complaint, the General
Counsel and the Union argue that there was also a meeting of
the minds on June 19 and the Respondent violated the Act by
failing to sign that agreement.
The Respondent alleges that there was no meeting of the
minds on the two alleged agreements, and even if there was a
meeting of the minds on both documents, the explicit condi-
tions were not satisfied to create a binding collective-
bargaining agreement with Local 284. Furthermore, the Re-
spondent alleges that even if the alleged collective-bargaining
agreement could be considered independent from the proposed
global settlement agreement, the Respondent lawfully withdrew
its proposal on the agreement before it was accepted, approved
and ratified. (R. Brief p. 1.) Based on these arguments, the Re-
spondent argues that the General Counsel has not met the bur-
den of showing that the Respondent refused to sign a contract
reflecting the parties’ meeting of the minds, and that the com-
plaint should be dismissed.
C. The Law and Analysis
It is well established that the obligation to bargain collective-
ly under Section 8(d) of the Act requires either party, upon the
request of the other, to execute a written contract incorporating
an agreement reached during negotiations. H. J. Heinz Co. v.
NLRB, 311 U.S. 514 (1941). The Board has held however, that
the obligation to execute a written contract arises only after a
“meeting of the minds” has been reached on all substantive
issues and material terms, provided there was in fact the intent
to have a contract. Hempstead Park Nursing Home, 341 NLRB
321, 322 (2004); Sunrise Nursing Home, 325 NLRB 380, 389
(1998); Intermountain Rural Electric Assn., 309 NLRB 1189,
1192 (1992); Buschman Co., 334 NLRB 441, 442 (2001). The
Board has also determined that it is the General Counsel’s bur-
den of showing that the parties not only had the requisite
“meeting of the minds” on the agreement reached, but also that
“the document which the respondent refused to execute accu-
rately reflected that agreement.” Hempstead Park Nursing
Home, supra at 332; Windward Teachers Assn., 346 NLRB
1148, 1150 (2006).
The Board has held that a “meeting of the minds” on all sub-
stantive issues depends upon the objective terms of the collec-
tive-bargaining agreement rather than the subjective under-
standings of the terms of the parties. Vallejo Retail Trade Bu-
reau, 243 NLRB 762, 767 (1979), enfd. 626 F.2d 119 (9th Cir.
1980). The Board has found that the issue is one of intention,
and thus the question is whether the parties intended to have a
contract as evidenced by a “meeting of the minds.” Id. In de-
termining whether an agreement has been reached by the par-
ties, the Board has held that it is not strictly bound to “the tech-
nical rules of contract law but is free to use general contract
principles adapted to the collective-bargaining context.” New
Orleans Stevedoring Co., 308 NLRB 1076, 1081 (1992); citing
NLRB v. Electra-Food Machinery, 621 F.2d 956, 958 (9th Cir.
1980). To prove a meeting of the minds, the General Counsel
must prove that the parties’ objectively manifested intent, as
demonstrated by their communications with each other, shows
that they agreed on all substantive issues and material terms
contained in the alleged agreements. Crittenton Hospital, 343
NLRB 717, 718 (2004). Thus, it must be proven by the Gen-
eral Counsel that the parties intended to agree to all of the sub-
stantive terms in the contract reflected by the alleged meeting
of the minds. Sanitation Salvage Corp., 342 NLRB 449, 455
(2004).
In situations where the alleged agreement is reduced to writ-
ing, it is the General Counsel’s burden to show that the written
agreement accurately reflects the parties’ alleged meeting of the
minds. Crittenton, supra at 718; Windward Teachers, supra at
1150. The Board has held that in situations where there is reli-
ance on a document to prove intent, the principles of contract
law are applied to determine whether the parties reached a
“meeting of the minds.” If the terms of the document are un-
ambiguous, the parties’ “meeting of the minds” is based on
objective terms of the contract rather than subjective under-
standing (or misunderstandings) of the terms by the parties.
Hempstead Park Nursing Home, supra at 322–323. However,
if the document contains terms that are ambiguous and the par-
ties attach different meanings, a “meeting of the minds” is not
established. In addition, if as a result of the ambiguity the mis-
understanding is neither party’s fault or both parties are to
blame, there is no “meeting of the minds” and that seeming
agreement will not create a contract. Id. at 322–323.
I find that, for the reasons set forth below, the credible evi-
dence and the undisputed documentary evidence establish that
there was not a meeting of the minds with regard to the pro-
posed global settlement agreement at issue in this case.
1. The parties chose to pursue a global agreement structure
wherein the Local 284 agreement was contingent upon a global
settlement agreement that involved local unions at other Re-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
spondent locations in Ohio
In this case, to determine whether the parties had a “meeting
of the minds” on the alleged agreements, both for the Local 284
contract and the global settlement agreement, the structure of
the negotiations has to be taken into consideration. It is undis-
puted that when the Local 284 bargaining resumed in January
2015, the Union changed the structure of the negotiations for
the Local 284 contract, as well as for the Local 293 contract in
Cleveland, the Local 20 contract in Toledo, and the Local 957
contract in Dayton, the three other Respondent locations that
were involved in negotiations with the Teamsters. It is also
undisputed that, at that time, President/Chairman of the Ohio
Conference of Teamsters Bill Lichtenwald informed the Re-
spondent that it was the intention of the IBT and the Ohio Con-
ference of Teamsters to force the Respondent to accept union
security for the Local 284 unit in Columbus. Thereafter, the
bargaining for the Local 284 agreement changed from involv-
ing only the participation of Local 284 officials, as had been the
practice for the previous negotiations, to bargaining which in-
cluded the participation and influence of the Ohio Conference
of Teamsters and the International Brotherhood of Teamsters,
as well as representatives from the other local unions that rep-
resented employees at Respondent’s other locations.
As very little progress was being made in the Local 284 ne-
gotiations, in late April 2015 Doll proposed a different ap-
proach which consisted of what Brown described as a “very
serious” proposal of union security for Local 284 in exchange
for proceeding with the pending decertification petition. While
the Respondent was understandably intrigued by that offer, it
decided it would not be enough to resolve the Local 284 bar-
gaining situation while there were other issues and uncertainty
with regard to the bargaining relationships at its other locations.
Thereafter, it is undisputed that the parties agreed to a “global”
approach to resolving not only the issues with the Local 284
negotiations, but issues at the other locations that existed in
their bargaining relationships. Such issues or complication
included another decertification petition, a corporate campaign
aimed at the Respondent’s customers and the public to exert
pressure on the Respondent, a local contract that had been rati-
fied but not approved by the IBT, and the duration and expira-
tion dates for the various local contracts which had the implica-
tion of additional pressure on the Respondent by virtue of pos-
sible coordinated strikes by the Teamsters at the locations
where the contracts were to expire at the same time.
It is also undisputed that the parties agreed that the proposed
Local 284 contract in Columbus would be contingent upon, and
therefore only effective, if a global settlement agreement was
reached and the terms of the global settlement agreement were
satisfied. Paragraph 1 of the proposed global agreement is
unambiguous and clearly sets forth the parties’ understanding
that: “[c]ontingent upon the complete satisfaction of all the
terms of this Settlement Agreement the Company and Local
284 have entered into a tentative agreement for an initial Col-
lective Bargaining Agreement, subject to the outcome of the
decertification election in Case No. 09–RD–134933[.]” That
contingent contract was then identified as an exhibit to the
global agreement to avoid any uncertainty as to which proposed
contract this paragraph referenced.
Thus, in determining whether there was a “meeting of the
minds” by the parties in this case, the Local 284 collective-
bargaining agreement and its bargaining cannot be analyzed in
a vacuum. The “global” structure chosen by the parties re-
quires a determination as to whether the parties had a meeting
of the minds on the global settlement agreement, that very
agreement the parties determined the Local 284 contract would
be contingent upon, and if so, then whether there was a meeting
of the minds on the Local 284 contract. That global settlement
agreement unambiguously required satisfaction of the terms of
the global agreement in order for the contingent Local 284
collective-bargaining agreement to be effective. In other
words, given the agreed-upon contingent nature of the alleged
Local 284 contract and the global settlement agreement pack-
age proposal, a meeting of the minds on the terms of the Local
284 contract would not mandate a binding contract without a
corresponding meeting of the minds on the global settlement
agreement. In addition, pursuant to the structure chosen by the
parties and the terms of the global settlement agreement, the
Local 284 contract would not be effective unless and until the
terms of the global settlement agreement were “satisfied.” As
set forth below, the credible evidence does not establish that the
parties had a “meeting of the minds” on the global settlement
agreement, nor does it establish that the terms of the global
settlement agreement were satisfied.
2. The credible evidence establishes that there was no “meeting
of the minds” by the parties on May 26, 2015 regarding the
terms of the global settlement agreement
In the May 26, bargaining session the parties met to continue
bargaining for a collective-bargaining agreement in Columbus
and for a global settlement agreement. It is undisputed that
much was accomplished in that session. The parties discussed
the global concepts that were agreed upon after the April 29
meeting, such as the Respondent’s goals as far as the expiration
dates for the contracts, and the expiration dates for all of the
local contracts. Brown credibly testified that he discussed that
one of Respondent’s core objectives was not to have cotermi-
nous contract expiration dates for Dayton, Cincinnati, and Co-
lumbus because they were significantly larger operations cover-
ing the southern half of the state. The Union agreed to request
that the International stop its corporate campaign, and stated
that if the request was made, the International would honor it.
For Local 284, the Union proposed an expiration date of No-
vember 1, 2018 and Respondent proposed an expiration date of
February 2019. The Respondent agreed that the Union could
have union security in the Columbus contract if the Union
agreed to withdraw its challenges to the decertification petition
and allow that election to go forward. The parties agreed to
extend the contracts for Local 20, 293 and 957. In addition, the
Respondent requested that Local 377 be a part of the global
settlement by withdrawing its objections and unfair labor prac-
tice charges, but the Union responded that Local 377 would not
be a part of it.
While the bargaining notes of the parties reflect that by the
end of the day, they believed there were two remaining is-
sues—wages and whether Local 377 would be a party to the
global agreement (which were shortly thereafter agreed to), the
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 13
evidence does not establish that all the material and substantial
terms of the global settlement agreement were discussed and
agreed upon. At that time, no written proposals encompassing
the global settlement agreement or the entire Local 284 contract
were exchanged and no TAs were initialed or signed. Instead,
the parties discussed the underlying principles of a global
agreement and spoke in generalities. As Brown credibly testi-
fied, there was an understanding on principle or a framework
for a global agreement, and Brown was to set forth those terms
in a draft agreement.
When Doll reviewed that draft, it became apparent that the
parties did not have a “meeting of the minds” on all of the ma-
terial and substantial terms of the global settlement agreement.
Doll expressed that the parties did not have an agreement on the
inclusion of the IBT and Local 1199 as being a part of the glob-
al agreement; that there was no agreement on a date for the
decertification election regarding Local 284; that Local 284 and
the IBT could not agree to prohibit future corporate campaign
conduct; and the parties had not agreed to specific durations or
expiration dates for the contracts in Dayton and Toledo.
That same day, Brown replied to Doll, expressing his disa-
greement with Doll’s assertions. In particular, Brown disa-
greed with Doll’s contention that Local 1199 was not a party to
the proposed global agreement. Brown explained that Verst
had been present on behalf of Local 1199 at the negotiations
and the parties knew Respondent’s core objective was to avoid
coterminous expiration dates, which logically implicated the
Local 1199 collective-bargaining agreement. Brown’s asser-
tion that he believed there was an understanding that Local
1199 was part of the global agreement is not only credible, it is
also plausible when considering the facts and the structure of
the negotiations which were aimed at resolution of not only the
Local 284 issues, but also the issues at the other locations
which included the duration and expiration dates of other local
contracts, such as Local 1199. It is also entirely plausible that
Verst, the president of Local 1199, was involved in the negotia-
tions as a representative of Local 1199 as well as the Ohio Con-
ference of Teamsters. The record does not reveal that Verst, at
any time during the negotiations, informed the parties that he
was there only in his capacity as vice president of the Ohio
Conference of Teamsters, or that he was not there as a repre-
sentative of Local 1199.
Brown also testified that he believed there was an under-
standing among the parties that the IBT would be part of the
global settlement agreement because he believed the IBT was
orchestrating the Teamsters’ corporate campaign that was to
cease as part of the settlement. As mentioned above, Brown’s
belief that there was agreement on the IBT’s inclusion was
credible and plausible. The IBT had a presence at the negotia-
tions and Brown was informed by a representative of the Team-
sters that it was the IBT’s and Ohio Conference of Teamsters’
intention to force Respondent to accept union security for the
Local 284 unit in Columbus. In addition, it is undisputed that
the IBT was the moving force behind the corporate campaign
and that it had some degree of control over the negotiations of
the global agreement and the individual local contracts as re-
flected by the fact that the IBT had not given its approval of the
tentatively agreed upon Local 293 Cleveland contract. Fur-
thermore, the fact that the parties chose a “global” approach to
the negotiations and its structure would lead one to believe that
the International would be part of that agreement since it in-
volved a number of its local unions that represented employees
of the Respondent. Therefore, I find it plausible and believable
that the Respondent would have believed that the IBT would be
a part of the global settlement agreement.
Furthermore, as the General Counsel would argue that those
terms in dispute were somehow minor, insignificant, or non-
substantive, that argument is without merit and is not supported
by the record evidence. The record and credible testimony of
the Respondent’s witnesses revealed that the terms of which
entities and locals were to be part of the global agreement, and
what the durations and expirations of the contracts were going
to be, were materially significant and substantial terms of the
global agreement. The undisputed approach and intent of the
global agreement to resolve the collective-bargaining issues not
only for Local 284, but for the other locals that represented the
Respondent’s employees, supports finding that such terms were
material and substantial.
Contrary to the General Counsel’s and the Union’s assertions
in this case, the credible evidence does not support that there
was a meeting of the minds on May 26. No terms of the global
agreement were initialed or signed by the parties indicating
their approval. No written proposals containing the terms of
the global agreement were exchanged on May 26. Instead, the
parties exchanged emails explaining their disagreement as to
whether the terms of the global agreement had been agreed
upon. Such undisputed facts constitute compelling evidence
that there was no meeting of the minds on those important as-
pects of the global agreement.
In addition, after May 26 in the bargaining session for Local
957’s contract, the parties continued to bargain over the terms
of the global settlement agreement. On June 8, Doll sent an
email to Brown with a counter proposal on the global agree-
ment describing it as the “Union’s revised Settlement Agree-
ment for the Company’s consideration.” In that proposal, the
Union proposed changes to substantial terms of the agreement,
such as removing the IBT as a party and adding an “Execution
Clause” that explicitly provided that the global settlement
agreement, “the Consent Election Agreement, the contingent
Collective Bargaining Agreement between the Company and
Local 284, the Extension Agreement between the Company and
Local 20 and the Extension Agreement between the Company
and Local 957 will be signed and become effective on the same
date.” On that same day, Brown provided the Union with a
counter to Doll’s proposal in which he added Local 377 as a
party to the agreement, and added language requiring Local 284
to request that the IBT cease its corporate campaign, which also
constituted significant terms of the global agreement. I find
that the exchanges of additional proposals by the parties serves
as unmistakable and undisputed evidence that there had been no
meeting of the minds on May 26.
I further find that the General Counsel’s and the Union’s as-
sertions that there was a meeting of the minds on May 26 are
simply not credible as such assertions were contradicted by the
statements and actions of the General Counsel’s own witnesses.
In the June 19 negotiations for the Local 957 contract, after the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
alleged meeting of the minds on May 26, Brown asked Doll for
a counter proposal to the Respondent’s June 8 proposal for a
global settlement agreement. If in fact there had been a meet-
ing of the minds on May 26 as the General Counsel and Union
allege, it is reasonable to believe that Doll would have respond-
ed to that request with a statement indicating that no counter
proposals were necessary because there had already been a
meeting of the minds on May 26 and a complete agreement
reached. However, Doll failed to issue such a response. In-
stead, Doll presented Brown with a counter proposal. Critical-
ly, the record further establishes that Doll admitted that, at the
time of Brown’s request, a global agreement “had not been
finally agreed to.” (Tr. 266–267.)
Brown also spoke with Jay that morning of June 19 and con-
veyed to him the need for a response to Respondent’s global
settlement proposal and his concern for a possible strike by the
Teamsters. Brown also conveyed that he was going to assume
the Union did not want to go forward on the global agreement,
and the Respondent was going to prepare to spend a lot of
money on security for the strike. Like the discussion Doll had
with Brown that same day, it is reasonable to believe that had a
complete agreement been reached on May 26 as the Union
alleges, Jay would have informed Brown in no uncertain terms
that the parties had already reached agreement on a global set-
tlement and therefore no response was needed. To the contrary,
in response Jay informed Brown that the Union would like to
get a global settlement, and that the Union’s failure to respond
should not be “misread” because the Union would like to “do
this if we can” and that they would “turn [their] attention to it.”
(Tr. 663.)
Further evidence that there was no meeting of the minds on
May 26 is found in an email that Brown sent to Doll during a
caucus on June 19 at 11:21 a.m. In that email, Brown conveyed
to Doll his desire for a response to his global settlement pro-
posal and concern for a pending strike. Doll responded by
emailing a global agreement counter proposal to Brown entitled
“Local 284 Proposed SA—June 19, 2015,” which Doll had
prepared and which made modifications to Brown’s last coun-
ter proposal. There is no evidence that either Doll or Jay re-
sponded to Brown asserting that the parties had already reached
an agreement on a global agreement on May 26. I find these
responses by Doll and Jay are simply implausible and incon-
sistent with the General Counsel’s and Union’s assertions that
there was a meeting of the minds and a complete agreement on
the global settlement agreement on May 26. Instead, they serve
as undisputed and compelling evidence that no such meeting of
the minds occurred.
Therefore, the evidence does not establish that the parties
agreed on all the substantive issues and material terms con-
tained in the alleged agreements. Crittenton Hospital, 343
NLRB 717, 718 (2004). In addition, the credible evidence fails
to establish that the parties intended to agree to all of the sub-
stantive terms in the contract reflected by the alleged meeting
of the minds. Sanitation Salvage Corp., 342 NLRB 449, 455
(2004).
3. The General Counsel’s and Union’s arguments that there was
a “meeting of the minds” are not plausible or credible, and are
without merit
In arguing that there was a meeting of the minds on May 26,
the General Counsel and Union rely on Respondent’s update
issued to employees and the fact that it did not caution employ-
ees that the agreements had not been finalized, and that it
somehow advised the employees that agreement had been
reached on a global agreement that incorporated the Local 284
decertification election. I find this argument unavailing.
The Respondent’s update, like the negotiation update issued
by the Union, made little mention of the terms of the global
settlement agreement, with the exception of the focus on pro-
ceeding to the decertification election which was one of the
major items of importance to the parties and the Columbus
employees. The Union’s update essentially campaigned for the
members’ support in the anticipated decertification election, but
made no other mention of the terms of the global settlement
agreement. Likewise, Respondent’s update, while reporting
“great news” of a “Tentative Agreement” for a first contract in
Columbus, did not discuss the details of the terms of the Local
284 agreement, and it also did not discuss the terms of the
global settlement agreement beyond the decertification election.
Instead, like the Union, the Respondent focused the handout on
its own campaign to prevail in the anticipated decertification
election. The handout explained that the tentative agreement
would provide for a vote in the decertification election to de-
cide if the Union would continue to represent them, and if the
majority of the employees voted no in the decertification elec-
tion, the contract negotiated with the Union would be meaning-
less and the Union would no longer represent them. Thus, I
find that the Respondent’s update did not evince a meeting of
the minds on all the substantive terms of the global agreement,
but instead served as a vehicle to campaign for the employees’
support in the decertification election. In addition, Brown cred-
ibly testified that the global settlement and its details were not
discussed in the letter because it involved the other facilities,
and Hice also credibly testified that the global agreement was
not discussed because the employees did not know about it.
4. The credible evidence further establishes that there was no
“meeting of the minds” by the parties on June 19, 2015
While not alleged in the complaint, the General Counsel and
the Union nevertheless allege that the parties also had a meet-
ing of the minds on the global settlement agreement on June
19.7 I find that assertion equally lacks merit and that the credi-
ble evidence also failed to establish that there was a meeting of
the minds and a complete agreement on either the global set-
tlement agreement or the contingent Local 284 agreement on
June 19.
The final proposal from Local 284 on the global settlement
agreement on June 19 made modifications to the Respondent’s
last proposal of June 8. The Union proposed a July 17 date to

7 The General Counsel failed to amend the complaint to include the
allegation that the parties reached agreement on the global settlement
agreement on June 19, and that the Respondent’s failure to execute that
agreement violated the Act.
DAYTON HEIDELBERG DISTRIBUTING CO. D/B/A HEIDELBERG DISTRIBUTING CO. 15
finalize a consent election agreement regarding the decertifica-
tion election for Local 284. In paragraphs 2 and 4, the Union
rejected the Respondent’s proposal regarding limits to and the
cessation of the Teamsters’ corporate campaign, specifically
those directed at current and potential customers and suppliers,
and requiring Local 284 to refrain from corporate campaign
activities. Doll rejected the proposal that the corporate cam-
paign cease until the certification of the decertification election
results and proposed that cessation only last until the date of the
decertification election. Doll again added the language: “all
lawful conduct” and “in any way” to broaden permissible elec-
tion campaign conduct, which the Respondent had previously
rejected because it suspected they created loopholes for the
Union to continue the corporate campaign. Finally, Doll pro-
posed extending the contracts with Local 20, Local 293, and
Local 957 to July 17 and removed the Respondent’s proposed
automatic 7-day extension beyond the date of a decertification
election for Local 284 if the election occurred after the exten-
sions expired. (Tr. 667–668.) While Doll’s proposal added
Local 293 as a party, it also removed Local 377 as a party and
any reference to the withdrawal of objections in that decertifi-
cation election.
Even though Doll testified that Brown stated “that’s okay” to
the various changes Doll proposed, it is undisputed that Brown
made changes to Doll’s proposal and that he indicated he had to
run the proposal by Hice to get her approval. He further indi-
cated that he would let them know if there was a problem.
Brown testified that he made some minor edits to the document,
but that his proposal about the Teamster’s corporate campaign
being suspended was a substantive change as it was a core issue
for the Respondent. Brown’s testimony is supported by the
record that established that ceasing the corporate campaign was
a core issue for the Respondent and I find that change was a
substantive change to the agreement that required a meeting of
the minds to establish a complete agreement among the parties.
In addition, I find that there was no meeting of the minds on the
terms of the global agreement as Brown had not yet conferred
with his client to approve the changes, and the differences on
his copy of the counter proposal had never been accepted by
Hice.
The Union’s assertion that the parties had a meeting of the
minds on June 19, while not supported by the credible record
evidence, was also belied by Jay’s testimony when he acknowl-
edged that there was no agreement on the global agreement
without Hice’s approval. In this regard, towards the end of the
bargaining session on June 19, while Brown was in the process
of putting together Respondent’s final proposal for the Dayton
contract, he saw Jay who inquired as to whether Hice had ap-
proved Union’s global settlement proposal, and Jay specifically
stated that “we have to wrap up this global settlement,” and that
without a global settlement, there would be no contract in Day-
ton.
The General Counsel asserts that when Brown proposed the
4-year Dayton contract and commented about the risk of agree-
ing to 4-year contracts at multiple locations, he “tacitly
acknowledged” that if the Dayton proposal were to be accepted,
Respondent would be subject to 4-year contracts in both Day-
ton and Columbus. I find this argument is baseless. Brown,
Neece, and Oakes all credibly testified that when Brown com-
mented about that risk, he referred to the Dayton, Toledo, and
Cleveland contracts. Furthermore, that assertion by the Re-
spondent is plausible as Hice had already advised Brown to
change the Columbus contract expiration date to 2018, and it is
simply implausible to conclude that Brown was referring to a
2019 expiration date in Columbus.
In addition, since there was no meeting of the minds and
complete agreement on the global settlement agreement, and
therefore, the contingent Local 284 agreement at the conclusion
of the June 19 bargaining session, Brown was free to change
the date of the Columbus contract’s expiration date to 2019. As
such, I find that the General Counsel failed to carry its burden
of showing that the parties had the requisite “meeting of the
minds” on May 26 or June 19 for the agreements, and also that
there was a document which the respondent refused to execute
that accurately reflected those agreements. Hempstead Park
Nursing Home, supra at 332; Windward Teachers Assn., 346
NLRB 1148, 1150 (2006).
5. Even if there was a “meeting of the minds” on both docu-
ments, the explicit conditions were not satisfied to create a
binding collective-bargaining agreement with Local 284
Finally, I find that even if there was a meeting of the minds
on the global agreement and the Local 284 agreement, the
terms and conditions of the agreement were never satisfied so
as to create a binding collective-bargaining agreement with
Local 284. In this connection, on June 22 Doll notified Brown
that although the bargaining unit voted to ratify the Local 957
contract, the IBT did not approve it and therefore, there was no
binding contract with Local 957. Significantly, if there had in
fact been a global settlement agreement in place at that time,
the IBT would have had to approve the Local 957 contract as it
would have been required to do with the Local 293 agreement.
In addition, on June 22 the Teamsters’ corporate campaign
continued as well, wherein Local 284 distributed leaflets in
Columbus at locations including Marcella’s, a restaurant that
was a customer of the Respondent’s, and at the Women’s
World Cup in Canada on June 25. I find that these actions are
inconsistent with the General Counsel’s and Union’s assertion
that there was a meeting of the minds on the global agreement
as of June 19, and it constitutes evidence that even if there was
a meeting of the minds on the agreements, there was not the
agreed upon requirement of “complete satisfaction of all the
terms” of the global settlement agreement, and therefore there
was no binding Local 284 contract on the parties.
Based on the record evidence in this case, and the well-
established Board law discussed above, I find that the General
Counsel failed to meet its burden of showing that the Union and
the Respondent had the requisite “meeting of the minds” on a
global settlement agreement or on a contingent Local 284 col-
lective-bargaining agreement. Accordingly, I find that the Re-
spondent has not violated Section 8(a)(5) and (1) of the Act as
alleged.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Brotherhood of Teamsters Local Union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
No. 284 (the Union) is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Respondent has not violated Section 8(a)(5) and (1) of
the Act as alleged in the complaint.
On these findings of fact and conclusions of law, and on the
entire record, I issue the following recommended8

8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
ORDER
The complaint is dismissed.
Dated, Washington, D.C. June 8, 2016

mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.