DES MOINES COLD STORAGE, INC.

National Labor Relations Board - Administrative Judge Opinions

Aug 17, 2011

18-CA-019653 (N.L.R.B. Aug. 17, 2011)

JD–48–11
Des Moines, IA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
DIVISION OF JUDGES
DES MOINES COLD STORAGE, INC.
and Case 18–CA–19653
GENERAL TEAM AND TRUCK DRIVERS,
HELPERS AND WAREHOUSEMEN, LOCAL 90
Abby E. Schneider, Esq. and Pamela W. Scott, Esq.
for the General Counsel.
Michael J. Carroll, Esq. (Babich Goldman, P.C), of
Des Moines, Iowa, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARL E. SHAMWELL JR., Administrative Law Judge. This case was heard by me in Des
Moines, Iowa, on May 18, 2011, upon an original charge filed by General Team and Truck
Drivers, Helpers and Warehousemen, Local 90 (the Union) on January 13, 2011, against Des
Moines Cold Storage, Inc. (the Respondent). The Union filed amended charges against the
Respondent on January 18 and February 3, 2011.
On March 29, 20011, the Regional Director for Region 18 of the National Labor
Relations Board (the Board) issued a complaint against the Respondent alleging that the
Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). On
or about April 13 and 20, 2011, the Respondent timely filed its answers essentially denying the
commission of any unfair labor practices and asserting certain defenses.
Based on my review and consideration of the entire record herein and my observation of
the witnesses and their demeanor, along with the arguments and briefs submitted by the
General Counsel and the Respondent,1 I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is an Iowa corporation with an office and warehouse facilities in Des
Moines, Iowa, and has engaged in the operation of warehouses providing cold storage services.
During the calendar year ending December 31, 2010, the Respondent, in conducting its
business operations, derived gross revenues in excess of $500,000. During the calendar year

1 The Charging Party did not file a brief.
JD–48–11
2
ending December 31, 2010, the Respondent in conducting its business operations, purchased 5
and received at its Des Moines, Iowa facilities goods valued in excess of $50,000 directly from
points outside the State of Iowa.
Based on the credible evidence of record, I would find and conclude that at all material
times, the Respondent is and has been an employer engaged in operations affecting commerce 10
within the meaning of Section 2(2), (6), and (7) of the Act.2
II. LABOR ORGANIZATION
The Respondent admits, and I would find and conclude that General Team and Truck 15
Drivers, Helpers and Warehousemen, Local 90 is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE APPROPRIATE UNIT OF EMPLOYEES
20
The Respondent admits that the following employees (the unit) constitute a unit
appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act.
All full-time and regular part-time dock workers, including fork lift operators, employed at
its Des Moines, Iowa facility, excluding all other employees, guards and supervisors as 25
defined in the Act.
IV. BACKGROUND AND UNDISPUTED FACTS3
The Respondent operates two refrigerated warehouses at its principal place of business 30
in Des Moines, Iowa; the two warehouse facilities are designated the “South Plant” and the
“East Plant,” both of which are used to store refrigerated foodstuffs—primarily meats.
The Respondent’s management team is comprised of Charles (Chuck) Muelhaupt, his
son, Edward Charles Muelhaupt (E.C.), and Charles’ brother, Joe Muelhaupt. Since about 35
some time in 2009, E.C. has served as vice president of the Company, in which capacity he has
general oversight of business development and operations. Plant managers at the South and
East Plant report to E.C.4

2 See J. Exh. 2, a copy of the Respondent’s Questionnaire on Commerce Information dated
February 9, 2011, and signed by Edward C. Muelhaupt, vice president of the Company.
Muelhaupt testified at the hearing and stated that he, along with his father and uncle, comprise
the Respondent’s management team and that during the past 2 years, including the times
material to this litigation, he was responsible for general oversight of the business and its
operations. I would find and conclude that based on his testimony and the contents of the
questionnaire E.C. Muelhaupt submitted to the Board during the investigatory phase of this
matter that the Respondent is an employer within the meaning of the Act.
3 In this section, I have determined that matters covered are either undisputed by the parties
or are simply supported by the documentary and testimonial evidence submitted by the parties.
Where the evidence of record differs from these factual determinations, I have credited the
testimony that supports the determinations made here.
4 Based on his testimony and other credible evidence of record, I would find and conclude
that E.C. is a supervisor and/or agent of the Respondent within the meaning of Sec. 2(11) and
2(13) of the Act.
JD–48–11
3
The Respondent employs about 15 workers who have no official job titles but are simply 5
designated dockworkers who are assigned to either the South or East plant facilities. These
dockworkers comprise the current bargaining unit represented by the Union which has
represented the Respondent’s employees for many decades.
During the spring of 2010, the Respondent and the Union commenced negotiations for a 10
new collective-bargaining agreement to replace the then-existing contract set to expire on
March 31, 2010. Negotiations for the new agreement were not finalized before the contract’s
expiration date, so the parties verbally agreed to an extension; some time in May 2010, the new
collective-bargaining agreement was ratified by the bargaining unit members. However, the
agreement was not formally signed by the Union and the Respondent until July 23, 2010. The 15
term for the new contract was April 1, 2010, through March 31, 2013.
However, on July 20, 2010, the Respondent through E.C. scheduled a meeting with the
bargaining unit employees at the East Plant and met with them at 4:30 on that day. At this
meeting, E.C. and a representative of the insurance company informed the employees of the 20
Company’s proposal for changes in the employees’ health insurance benefits plan; mainly, that
the employees had to pay for a portion of the premiums associated with their health insurance
coverage, and provided the employees with certain information regarding their options for
coverage as well as the date on or before which the employees had to decide to enroll or not in
the insurance plan. E.C. informed the employees at the July 20 meeting that if they did not 25
choose one of the proffered plans, they would not have insurance coverage through Des
Moines Cold Storage. On July 23, 2010, the Respondent convened another meeting with the
South Plant employees and presented to them the same proposals and options. All bargaining
unit members were given the week of July 26, 2010, to provide enrollment information if they
desired to have health insurance coverage through the Company.30
The Union protested the actions of the Respondent, first by meeting with Chuck
Muelhaupt and later with E.C. and then by letter to Chuck requesting that the Company cease
and desist from directly bargaining with unit employees and implementing the changes to the
health insurance provisions of the collective-bargaining agreement.535
On or about August 11, 2010, the Union through its steward filed a grievance in protest
of the Company’s implementation of the insurance plan proposals.6 This grievance alleging a
violation of the new contract had not has not been resolved as of the date of the hearing.
40
On about August 24, 2010, the Union sent a letter to the Respondent requesting certain
information about the health insurance plans now in place so that the grievance could be
processed. The Respondent never responded to this letter request.
On September 9, 2010, the Union sent another letter to the Respondent requesting 45
among other things that the Company schedule a meeting to select an employer and a union
representative for a contract-mandated joint settlement board, and informing the Company of
the Union’s intent to advance the grievance to arbitration. The Respondent did not respond to
this letter.
50

5 The Union took these steps within days of the July 20 meeting through July 29, 2010.
6 The Union filed the grievance the day after the first insurance premium payments were
deducted from bargaining unit members’ pay.
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4
V. THE UNFAIR LABOR PRACTICE ALLEGATIONS5
This case essentially derives from the Respondent’s proposed implementation of the
new health insurance plan on July 20 and 23, 2010, and the actual implementation thereof
effective August 1, 2010.
10
Accordingly, the complaint essentially alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by not providing prior notice to the Union and affording the Union an
opportunity to bargain over the proposed health insurance changes; failing and refusing to
recognize and bargain in good faith with the Union over the proposed changes; bypassing it and
dealing directly with unit employees on July 20 and 23, 2010, concerning the proposed 15
changes; not providing notice to the Union or allowing it to be present at the meetings of unit
employees on July 20 and 23; unilaterally offering unit employees a new health insurance plan
option; unilaterally requiring the employees to pay a portion of the insurance premiums; and
unilaterally modifying the parties’ collective-bargaining agreement.
20
The complaint also alleges that the Respondent violated Section 8(a)(5) and (1) on or
about August 24, 2010, by failing and refusing to furnish the Union with certain requested
information deemed necessary for and relevant to the Union’s performance of its duties as the
exclusive collective-bargaining representative of the unit employees.
25
VI. THE GENERAL COUNSEL’S WITNESSES
Pat Navin testified that he is employed by the Union as its business agent and has
served in that capacity for the past 5 years including all times material to the instant controversy;
according to Navin, for the last 3 years he was assigned to represent the Respondent’s 15-30
member unit of dockworker employees. Noting that the Respondent’s dockworkers are
generally employed to unload trucks and store foodstuffs at the refrigerated warehouses, Navin
stated that, to his knowledge, the Union has represented them as far back as the 1930s.
Navin related that the most recent contract negotiations took place in the spring of 35
2010—March—and that he, along with employee Scott Winters who served as steward,
conducted the negotiations on behalf of the dockworkers; the management team was comprised
of the Muelhaupts—Charles, who is referred to by the nickname “Chuck”, and his son, E.C.7
According to Navin, the Muelhaupts, Winters, and he met once in April and once in May. Navin
described the negotiations as low pressure with few contested issues. Navin stated that he 40
raised the issue of health insurance during the negotiations.
Navin said that at the time the Teamsters were offering an insurance plan through its
Central States Fund and he believed that this plan was more economical than the plan currently
in place at Des Moines Cold Storage. However, according to Navin, when he broached the 45
matter to the Muelhaupts, they said they were not interested in making any changes to the
insurance plans and offered no proposals regarding health insurance.
Navin noted that he was familiar with the Company’s history regarding employee health
insurance prior to the 2010 negotiations and that the Respondent had always provided unit 50
employees with health insurance benefits for which the Company paid 100 percent of the

7 Charles Muelhaupt did not testify at the hearing. I was informed for the first time by the
Respondent’s counsel at the hearing that the elder Muelhaupt was unable to attend the hearing,
or otherwise participate in the hearing because of illness or infirmity. The Respondent’s counsel
proffered an affidavit from the elder Muelhaupt, but I declined to receive it.
JD–48–11
5
premium costs; employees did not contribute towards these costs, but only paid plan co-pays 5
and deductibles where applicable.
Navin identified the collective-bargaining agreement immediately preceding the latest
one, the terms of which covered April 1, 2007, through March 31, 2010, and stated that in Article
14 dealing with insurance and specifically in part (B), the Employer’s obligation is clearly stated810
and, further, pursuant to this provision, the employees never paid any portion of their health
insurance premiums.
Navin testified that the negotiations for the new contract did not conclude until May 2010.
Navin noted that this required the parties to agree in April to a verbal extension of the old 15
contract. Be that as it may, Navin said the new contract was ratified by his members and the
Company in May and there certainly were no outstanding contractual issues. Navin said that he
did not know that the current insurance plan was up for renewal at the time and neither of the
Muelhaupts mentioned that the plan had to be renewed during the negotiations.
20
Navin, however, stated that the contract was not formally executed until July 2010.
Navin also noted that irrespective of the later execution date, the terms of the new contract,
such as the new pay rates, were put into effect as of April 1, 2010;9 the formal signing of the
agreement was merely delayed. Navin explained how this happened.
25
According to Navin, he maintained copies of the various collective-bargaining
agreements with the Respondent in his computer. However, in May 2010, his computer was
infected by a virus which caused him to lose 5 years’ worth of contract files, including the ratified
agreement with the Respondent. Accordingly, Navin said he had to retype the entire contract
which cost him time.1030
Navin stated that he was really not concerned about the matter because of the
relationship the Union and the Company enjoyed. According to Navin, the Respondent was
simply not a high pressure shop and, moreover, everything was agreed to and the contract’s
terms were already in force and effect. Navin said that the signing was a mere formality to him 35
and, in fact, took place on July 23, 2010; he and Chuck signed off on the agreement in the elder
Muelhaupt’s office.11
However, Navin said that he had a later conversation with E.C. who told him that there
was not a signed agreement, or at least he (E.C.) did not have a copy. Accordingly, Navin said 40
that he went back to the Company on July 26 and he discovered that the last two pages of the

8 This contract is contained in R. Exh. 2. Art. 14(B) in pertinent part states:
After an employee has met there [sic] thirty [30] day probation period the Employer agrees
to pay health and welfare benefits. After an employee has accumulated three (3) years of
service, the Employer agrees to pay Health and Welfare payments for all periods due during
the year on such employee without exception.
9 Navin identified GC Exh. 3 as the agreement between the Union and the Respondent
effective April 1, 2010, through March 31, 2013.
10 Navin also conceded that when he retyped the new agreed-upon contract, he left off a line
in Art. 14(B), the health insurance provision that dealt with the employer’s agreement to pay
health and welfare benefits after the employee met his 30-day probation period. However,
Navin stated that, nonetheless, the parties had during negotiations agreed that Art. 14(B) did not
change at all from the previous contract.
11 See GC Exh. 10, the contract that Navin said that Chuck Muelhaupt and he signed on July
23, 2010.
JD–48–11
6
agreement were missing from the Respondent’s copy. Navin said he could not explain why they 5
were missing. Navin went on to say that he had made three copies of the agreement—one for
the Company, one for the International, and one for Local 90. However, on July 26, because
the signature pages were missing, he and Chuck re-signed the contract but dated it July 26 for
accuracy. Navin stated that, nonetheless, the contract was identical to the contract he and
Chuck signed on July 23. Navin stated that the employer’s obligation to pay 100 percent of the 10
employees’ health insurance premiums was unchanged under the new contract irrespective of
whether it was formally signed on July 23 or 26, and there was no dispute about this on either
date.
Navin stated that before the signing of the agreement on July 23, he received a call from 15
Winters on July 20, who informed him that the Respondent was about to make changes in the
health insurance plans and had scheduled a meeting with employees at 4:30 p.m. that day at
the East Plant. Navin said he immediately placed a call to Chuck who did not return his call;
whereupon, Navin decided to go to the plant that very day.
20
Navin testified that upon arrival he saw E.C. in the employee break room and motioned
to him to come out to the hallway where he queried E.C. about the meeting and its purpose.
According to Navin, E.C. told him that the meeting was being called to discuss different (health)
insurance plans the Company would be offering and the percentage (of premiums) the
employees would have to pay.25
Navin said that he protested this and told E.C. that first, he could not directly bargain
with the unit employees and, second, he could not unilaterally change the provisions of the new
contract and that he should immediately cease and desist any meeting with the employees.
Navin stated he left the matter at that and decided not to attend the meeting to avoid giving any 30
credibility (as he put it) to the meeting. However, as he was leaving the premises, Navin said he
asked Winters to report to him what had transpired at the meeting.
Later that day, Navin said that Winters advised him that at this meeting the Company
offered three different health plan options and the employees were instructed to choose one; 35
according to Navin, Winters told him there were “co pays” associated with all of the plans.
Navin stated that he instructed Winters not to sign on to any of the options until he had a chance
to discuss the matter with Chuck.
While not sure of the date, Navin testified that he spoke to Chuck who assured him that 40
the Company was going to continue paying 100 percent of the premiums as it had in the past,
but that the Company might have to look at another insurance plan (provider).
Navin said he told Chuck that irrespective of the plan(s) the Company was looking at,
the benefits would have to be identical in terms of benefits to the new contract. Navin said that 45
he left this meeting believing that the issue had been laid to rest, that he relied on Chuck’s
representation that the Company would continue to pay 100 percent of the premiums
However, Navin later learned that the matter was not resolved. Navin related that
Winters and employee Steve Underwood told him that E.C. had informed the unit that they had 50
to sign up for one of the insurance plan options he was offering so that payroll deductions could
commence; otherwise, the employees would lose their insurance coverage through the
Company.
Navin said this prompted him to speak to Chuck once more. According to Navin, Chuck 55
again said that the Company was going to pay 100 percent of the insurance premiums, but that
JD–48–11
7
E.C. was now in charge of the new insurance plan because he (Chuck) understood that the old 5
plan was no longer available.
Navin said that he then arranged to meet with E.C. to discuss the matter. According to
Navin, E.C. advised him of the plans in question but then added that the employees would have
to pay a portion of the premiums. Navin said he told E.C. that he would not agree to any kind of 10
premium co-pays for the employees. Navin related that he again admonished E.C., telling him
he could not either directly bargain with the employees or unilaterally change the negotiated
agreement.
Navin said the meeting ended with his saying to E.C. that if the old plan were no longer 15
available, the Union was amenable to discussing a plan with comparable coverage but one
without any employee premium contributions as per the contract that had been negotiated in
May and was actually in force. Navin said he made it clear that the Union was firm on this
point—the Union would not agree to any plan calling for any employee premium contributions.
20
Navin testified that on July 27, 2010, he wrote to the Company and essentially advised
Chuck that the Union opposed the unilateral change to health insurance provisions of the
contract; reminded management that the Union was (per the contract, Art. 25) the authorized
representative of the unit employees; and urged the Company to cease and desist from these
impermissible actions.12 According to Navin, the Respondent never replied to this letter.25
Around August 10, 2010, Navin stated that Winters advised that the employees were
having deductions from their pay for health insurance premiums. According to Navin, Winters
asked him whether a grievance should be the appropriate response and he told him to file one.
Navin noted that Winters filed the grievance on August 11, 2010.1330
Navin said that after the grievance was filed, he again spoke to Chuck who said the
Company was going to pay the insurance premiums as it had in the past, but that E.C. was
reviewing other and different plans. Navin volunteered that he enjoyed a pretty good
relationship with Chuck and, in fact, admired him, but reluctantly said he had to inform him that 35
what was going on with the insurance matter would result in a labor charge if the Company
persisted.
Navin went on to say that in view of the Union’s filing of the grievance on August 24,
2010, he sent a letter to the Respondent requesting certain information he thought would be 40
helpful in the processing of the grievance and that he would need this information “in the next 7
days.”14 Navin said that he believed that in view of the Respondent’s failure to respond to its

12 See G.C. Exh. 6, a copy of the letter and a copy of a certified return mail receipt dated
July 27 and 29, 2010, respectively.
13 See GC Exh. 7, a copy of Winter’s grievance dated August 11, 2010, cosigned by one of
the Company’s supervisors on August 12, 2010. The grievance refers to Art. 14 of the
contract—the health insurance provisions—and states that on August 10, the Company forced
bargaining unit employees to pay premiums for medical insurance.
14 See GC Exh. 8, a copy of Navin’s letter addressed to “Mr. Muelhaupt.” It should be noted
that the letter refers to several meetings had with Chuck about the insurance issue which
included the Company’s past practice of paying 100 percent of the health insurance and
Chuck’s assurances that the Company would continue to pay 100 percent. The letter also
states that the Company was not complying with the contract and fulfilling its financial obligation
as agreed.
The letter specifically requests a list of all bargaining unit employees, the insurance plans
JD–48–11
8
letter of July 27, the matter was destined for arbitration so he needed the requested information 5
to present the Union’s position at that level. Navin testified that he never received any response
from the Respondent, let alone any of the requested information.
Along those lines, Navin said that he again wrote to Chuck on September 9, 2010,
regarding the grievance and reminded him that the contract (in Art. 9) requires that grievances10
had to be referred to a Joint Board comprised of a union representative and an employee
representative for possible settlement. Navin said that he advised the Company in this letter
that since it had not scheduled a Joint Board, that a settlement evidently would not be had, and
that the Union intended to advance the matter to arbitration.15
15
Scott Winters testified that he has been employed by Des Moines Cold Storage as a
dockworker for about 16-1/2 years and has been a member of Local 90 for 15-1/2 of those
years; for the past 1-1/2 years, he has served as the Union’s shop steward. Winters stated
there are about 13 employees in the bargaining unit—8 at the East Plant and about 5 at the
South Plant facility.20
Winters said that his duties as shop steward include handling grievances, accompanying
employees subject to disciplinary action, and assisting with the negotiation of collective-
bargaining agreements, a role he played in the last negotiations that took place in early April
2010, along with Navin and Chuck and E.C. Muelhaupt.25
According to Winters, the negotiations went fairly smoothly. Winters recalled that the
Union sought and got a 40-cent per hour wage increase and funeral leave for the employees’
step-parents. According to Winters, nothing was said about health insurance which was
somewhat surprising to him, considering that this was a “hot topic in the world” (as he put it). In 30
any case, Winters said that while he wondered about the insurance subject, he left the
negotiations feeling pretty good about what had transpired. Winters conceded that he had no
hand in drafting the final agreement.
Winters noted that throughout his career with the Company, the employees have never 35
paid any portion of the health insurance premiums, that all of the contracts he had read during
his time with the Company included basically the same language which required the Company
to pay the health insurance premiums.16
However, Winters said that this changed in August 2010 when he and the other unit 40
employees had health insurance premiums deducted from his and their pay. Winters related
the events leading to this change.
Winters recalled that sometime in late July 2010, the Respondent distributed to the unit
employees some paperwork relating to health insurance. Winters stated that he did not receive 45
his copies of the paperwork until the day of a meeting the Company had scheduled with the

currently covering them; suggested plans for bargaining unit employees’ payroll; and a
statement as to where deductions were spent.
See, also, GC Exh. 11, a copy of this letter and a copy of a certain mail receipt dated August
26, 2010.
15 See GC Exh. 12, a copy of Navin’s letter dated September 9, 2010. See, also, GC Ex. 13,
a copy of the letter and a certified mail receipt dated September 13. 2010.
16 Winters stated that he did not participate in any negotiations, presumably, before being
elected to the steward’s position. He, nonetheless, insisted that he knew what deductions came
out of his paycheck, and health insurance premiums never were. (Tr. 109).
JD–48–11
9
employees. Winters said that on the day of the meeting employees approached him and asked 5
if he knew what was going on, and at that time he discovered the Company’s plans for a new
health insurance plan and policy that included an employee premium contribution. Winters said
the employees were very upset over this, but for his part he was not altogether sure what the
meeting was about until it started.
10
Directing himself to the meeting, Winters said that E.C. led the presentation but the
proposed changes were also explained by a representative from the insurance provider—
Natalia. After the presentation, Winters said that he spoke up, saying that to him it appeared
the Company was going to start making the employees pay premiums, and E.C. said that was
correct. Winters said that he told E.C. that this would violate the contract. According to Winters, 15
E.C. said that the Company had to do this. It could no longer afford to pay the premiums.
Winters said that he said nothing more at the meeting.
With regard to Navin, Winters stated that on the day of this meeting he called him and
informed him of what was going on—that the Company was going to make employees pay 20
premiums—and that he needed to come to the plant. Later, Winters said he observed Navin
speaking with E.C. in the hallway near the meeting area for about 30 seconds to 1 minute.
According to Winters, the conversation ended but he recalled, as E.C. walked to the meeting
area, Navin’s telling E.C. “you can’t do this, you know, and you’ve got a contract.” Winters said
that E .C. did not respond and continued to the meeting. Winters said that Navin told him to call 25
him when the meeting concluded.
Winters stated that after Natalia’s presentation, it was understood by all of the
employees that if they did not choose one of the plans, they would not be covered by any
insurance. After the meeting, Winters said a lot of employees were angry over the sudden 30
change when they (and he) believed the contract had been executed in April and was in force.
Winters said he told the employees that he would call the Union and try to rectify the situation.
According to Winters, Navin and he discussed the need to have a meeting with
management to put a halt to the change because the contract was in place (raises had been 35
given) and nothing in the agreement permitted the health insurance change. However, Winters
said all of their efforts were to no avail; and he signed up for the two parties’ plans under the
new insurance plan.17
Winters said that he filed a grievance on behalf of himself and the other unit members on 40
August 11, 2011,18 the day after the first of the premiums was deducted from his pay.
Winters said that he and Navin met with E.C. and Chuck after the filing and voiced their
concerns. According to Winters, in Chuck’s office, E.C. said at one of these meetings that
employees needed to start paying the premiums. According to Winters, the matter remains 45
unresolved, including the grievance.
Winters conceded that he could not recall either E.C. or Chuck’s telling him (or Navin) at
these meetings that the Company was going to pay 100 percent of the premiums. Winters said

17 Winters volunteered that he had a sick wife and simply could not afford to be without
insurance coverage. It was his understanding that if he did not sign up, he would have no
coverage through the Company.
Winters said that the choices offered by the Company were a single–person plan, a two-
party plan; and a family plan.
18 Winters identified GC Exh. 7 as a copy of the grievance he filed over this matter.
JD–48–11
10
that he did not recall his asking about or E.C.’s speaking to a comparison of the Company's 5
proposal with market prices.
VII. THE RESPONDENT’S WITNESSES
Edward Charles Muelhaupt III, who goes by E.C., testified19 that he is and has been the 10
vice president-elect of Des Moines Cold Storage for the past 2 years; he has worked for the
Company since 2004. E.C. stated that his duties and responsibilities include general oversight
of the business’ development and operations.
E.C. stated that he was personally involved in the latest round of contract negotiations 15
which began in late March 2010, and specifically the management negotiators were his father
and himself; Navin and Winters comprised the union negotiating team
E.C. testified that he disagreed with Navin’s testimony regarding the events leading to
the current litigation. E.C. said that his first point of disagreement lay in the number of 20
negotiating sessions—there were three, not two as related by Navin. And second, that when
the old agreement expired in March 2010, he believed that there was no contract in place until
the new agreement was signed in late July 2010. E.C. went on to say that this was so because
all of the terms of the new agreement were not resolved until the signing, specifically the health
insurance issue.20 E.C. stated that the reason this issue was unresolved was because the 25
Company did not know what the rates would be at the time negotiations commenced and that
the rates did not become available until late July from the insurance brokers handling the
Company’s account.21
E.C. insisted that during the bargaining sessions that spring, neither he nor his father 30
ever told Navin or Winters that the Company’s past practice of paying full the insurance
premiums would not change. According to E.C., the Respondent put the insurance out for
competitive bids through its insurance agent in the time frame leading up to July 2010, at which
time the Company was able to get the best deal then available. It was at this time that he
decided to hold the July 20 meeting with the employees to discuss the matter because the 35
insurance options had to be acted on. E.C. stated that in fact the changes to the insurance
were in the works some time prior to July 20—because he had received the rate increases from
the brokers in late June or early July and, therefore, shortly before July 20 he had determined to
begin charging the employees for a contribution to the premiums. (Tr. 143.)
40
E.C. said that he informed the Union “shortly before July 20” of the meeting and
arranged to have Navin meet with him on July 20 at 4 p.m. E.C. conceded that he made no
attempt to notify the Union or bargain with it about the insurance change other than the 4 p.m.
meeting with Navin on July 20.
45

19 E.C. Muelhaupt was also called as a witness by the General Counsel who was permitted
by me to examine him under Rule 611(c) of the Federal Rules of Evidence.
20 E.C. said that this was the sole unresolved and outstanding issue between the Company
and the Union. (Tr. 126.) However, shown his affidavit, E.C. agreed that in it he averred that
there were no negotiations on health insurance during the spring bargaining sessions.
21 E.C. said that Natalia Boychenko of the Holmes Murphy Insurance Company handled the
Company’s insurance matters. Coventry was the plan’s insurance carrier under the old contract
as well as the new one executed by the parties in July 2010.
E.C. identified in GC Exh. 4 the Coventry insurance coverage plans that he offered the
employees on July 20 and 23 and were implemented on August 1, 2010.
JD–48–11
11
E.C. stated that he met with Navin at 4 p.m. on July 20; the meeting with employees took 5
place at 4:30 p.m. at the East Plant and was the first of two meetings with them. According to
E.C., his meeting with Navin lasted about 10–20 minutes and it was cordial business-like; no
one used heated words or raised voices.
E.C. said that Navin never told him he could not present the coverage proposals to the 10
employees, and specifically never told him that he could not directly bargain with the
employees.22 E.C. also testified that Navin not only did not object to his presenting the
proposals to the employees, he consented and gave him permission to do so for their feedback.
E.C. conceded that it was unclear to him whether Navin gave his consent or permission to
implement the proposals.2315
E.C. stated that he recalled discussions with Winters about the insurance plans, but
these occurred sometime after the July 20 meeting and not in the meeting itself. E.C. recalled
that the meeting took place in his father’s office and Winters asked how the Company’s
(insurance) price offerings compared to the market in general. According to E.C., he told 20
Winters that the market price for the plans was twice as much as what the Company was
offering in its proposals for a family in the State of Iowa. E.C. recalled that this conversation
took place before he received any grievances over the matter from the Union.
E.C. could only say that he “thought” that he had discussions with Navin perhaps 2 25
weeks or less after the meeting with the employees. At this meeting, E.C. recalled that the
meeting concerned health insurance and that only he and Navin were present. According to
E.C., Navin asked about the plan and whether he had considered other plans and asked if the
Union could be informed about the insurance plans prior to any decision to renew. E.C. said that
the meeting was cordial and business-like.30
E.C. insisted that the insurance plan he offered to the employees at the July meetings
was merely a proposal and not an announcement of a change or a fait accompli; the employees
were given the option to have the Union provide a counterproposal. E.C. conceded, however,
that he indeed told them that under his proposal they would be expected to pay a portion of the 35
insurance premiums going forward and that before the meeting the employees had never paid
anything toward their insurance premiums; the Respondent paid the full premium amount. (Tr.
24–25.) E.C. testified that in his view what he proposed was not a new plan but new pricing for
the same plan, and that if the employees agreed to the new pricing they would pay the amounts
associated with the one-person, two-person, or family plans. E.C. denied ever telling the 40
employees that they had to choose from these plans or forego coverage.
E. C. said that he told employees that had already spoken to Navin and that he had
given him permission to speak with them, to present the proposal, to get their feedback;
moreover, he (E.C.) was amenable to a counterproposal even as late as July 20. E.C. 45
conceded, however, that August 1, 2010, was the “drop dead” date for the employees to make a
decision, and that he gave them the week of July 26 to make their election because the

22 E.C. identified R. Exh. 4, a copy of the coverage proposals he presented to the
employees.
23 E.C. stated on cross examination that Navin entered the room where the employees met
to receive the insurance proposals on July 20. Shown his affidavit, E.C. acknowledged that he
averred that “Navin did not attend the employee meeting and did not ask to do so.” E.C.
insisted on the witness stand that Navin walked into the meeting room and, to his recollection,
Navin left the room (before the presentation), that Navin had already heard the presentation
from him (during the 4 p.m. meeting). (Tr. 140–141.)
JD–48–11
12
insurance company needed time to process the employee election forms and also to give them 5
time to consider their options.
According to E.C., even if the employees did not make an election, they probably would
have stayed on the plan on which they were enrolled, unless they submitted an opt-out form.
E.C. conceded, however, the employees who stayed on would have been subject to the new 10
pricing arrangements.24
As to the July 23 meeting at the South Plant, E.C. said that the insurance agent
(Boychenko) gave the same presentation to the seven bargaining unit employees there. He
recalled that his father (“Chuck”) and Plant Manager Dale Steele also attended. The South 15
Plant employees were also given the week of July 26 to make a decision.
E. C. admitted that the new insurance arrangement was implemented on August 1, with
all but two employees signing up under the new plan; deductions from employee paychecks
started on August 9 or 10 and employees since that time are paying 15–20 percent of the total 20
premium costs.
Regarding the contract that his father signed on July 23 and 26, E.C. testified that, first,
the language (in Art. 14) dealing with health insurance was changed by Navin so that it could be
interpreted to reflect the Respondent’s obligation to pay 100 percent of the premium. Second, 25
according to E.C., both he and his father signed the contract with the understanding that it
included the health insurance proposals he had offered to the employees on July 20 and 23 and
that the Union had agreed to that understanding. E.C. stated that because of this
understanding, the language of Article 14 of the new contract was essentially the same as the
previous contract25 even though the employees were going to have to pay a portion of the 30
premiums.
E.C. acknowledged that he had seen Navin’s July 27, 2010, letter (GC Exh. 6) to his
father protesting the Company’s decision to implement changes to the employee health
insurance benefits and requesting that the Company not do this. E.C. also acknowledged that 35
the Respondent’s management received Winter’s grievance (GC Exh. 7) dated August 12,
2010, over the Company’s implementation of the new insurance plan. According to E.C, the
grievance was not timely according to the contract. E.C. admitted that the Company did not
respond to the grievance.
40
E.C. stated that he was familiar with Navin’s August 24, 2010 letter (GC Exh. 8)
requesting certain information, but did not become aware of it until early in 2011. According to
E.C. he did not assign anyone to respond to the request, and knew of no one else in the
Company who might have responded to it.
45
Sandy Trimnell testified that she is employed by Des Moines Cold Storage and has been
with the Company for about 26 years and currently serves as the controller; Trimnell said that
her responsibilities and duties include doing the payroll, handling the various accounts, and
preparing financial statements.

24 E.C. ultimately conceded that as a practical matter, he offered the employees three
choices—Coventry Plans A and B, or no insurance through the Company. (Tr. 33.)
25 This latter response derived from my asking E.C. why his health insurance proposals
given at the meetings on July 20 and 23 did not appear in the contract that Chuck and Navin
signed on July 23 and 26. It is also noteworthy that E.C. testified that he was not aware that the
new agreement signed on July 26, 2010, was retroactive to April 1, 2010.
JD–48–11
13
5
Trimnell stated that prior to August 1, 2010, the bargaining unit employees did not pay
anything towards their health insurance coverage. However, after August 1, she was instructed
to commence deducting from unit employees’ pay a certain amount for health insurance
premiums.
10
Trimnell recalled that while she had no role in the decision to institute the deductions,
she did meet with E.C. and Chuck in August when the health insurance policy was renewed.
Trimnell also recalled a July meeting (she was not sure of the precise date) with the East
Plant employees, and that while she offices at the South Plant, she attended this meeting. 15
Trimnell stated that there were discussions about health insurance for all of the employees and
that E.C. spoke to the issues. Trimnell testified that she saw Navin at this meeting, that he was
seated perhaps between 8–12 feet from her. Trimnell noted that she could not recall Navin’s
saying anything at the meeting.26
20
Krista Larsen testified that she is employed by the Respondent at the East Plant where
she serves as the office manager. Larsen recalled attending a meeting of employees in July
2010 whereat E.C. discussed health insurance options. Larsen said that the meeting lasted
about a half-hour.
25
Larsen further testified that on the day of the meeting, she observed Navin and E.C.
conversing in the hallway before the commencement of the meeting; she did not hear what they
were talking about. According to Larsen, she was at the back of the break room and saw Navin
standing just inside the doorway separating the hallway and the break room.
30
Larsen was shown a copy of the Company’s proposals for employee health insurance
(G.C. Exh. 4) and stated this was the proposal discussed at the meeting. Larsen testified that
she observed E.C. discussing this proposal with Navin before the start of the meeting.
Larsen went on to say that she saw Navin27 in attendance at the meeting at least for a 35
portion of the meeting; Larsen stated that Winters also attended this meeting. Larsen said that
she could not recall either man asking any questions of raising any objections at this meeting.
VIII. Contentions of the Parties
40
The General Counsel first asserts that health and medical benefits are mandatory
subjects of bargaining and therefore cannot lawfully be changed without an employer’s
bargaining with the authorized representative of its employees in good faith. And, second, any
employer that unilaterally changes and implements a mandatory subject not only without giving
notice to the employees’ collective-bargaining representative, but also without giving the 45
representative an opportunity to bargain over the proposed changes, violates Section 8(5) and
(1) of the Act.

26 On cross-examination, Trimnell said that the meeting she attended was certainly in July
and believed it was the second meeting about health insurance. She insisted that the meeting
took place at the East Plant, that she only attended one meeting. Trimnell also insisted that
Navin was present during the meeting, and she stayed for the entire meeting. [Note: While
Trimnell did not physically identify Navin on the record, I saw her look in his direction as she
testified about his presence at the meeting.]
27 Larsen identified Navin at the hearing.
JD–48–11
14
The General Counsel contends that the credible evidence offered mainly through Navin 5
but also Winters indisputably establishes that the Respondent violated Section 8(a)(5) by
unilaterally implementing a new health insurance plan that resulted in a change of benefits, that
is, requiring unit employees to pay a portion of their health insurance premiums, in
contravention of the existing contract, and without giving the Union (sufficient) notice and
opportunity to bargain. She notes that the Respondent significantly made the change to the 10
health insurance in the absence of a lawful impasse in the negotiations.
The General Counsel submits that the contract covering the period April 1, 2010, to
March 31, 2013, was in force and effect as of May 2010 when the parties completed their
negotiations and each had ratified the deal. As proof, she notes that the unrebutted evidence 15
showed that the renegotiated wages under this agreement were in place and being received by
the unit employees as of the April 1, 2010 commencement date.
The General Counsel also contends that the Respondent did not establish economic
necessity to justify its unilateral modification of the agreement on August 1 because the 20
Company did not demonstrate that the health insurance costs presented an economic exigency
that was unforeseeable . On this point, she notes that E.C. evidently knew that premium rates
were going up, but he simply did not prepare for this contingency during the negotiations or
before the new contract was agreed on and approved in May, and signed off on in July. Worse,
E.C. did not bother to inform the Union at any time during the negotiations that health insurance 25
could be problematic. E.C. admitted that neither he (nor his father) raised the issue in the
negotiations prior to July.
The General Counsel contends that the Respondent violated the Act also by attempting
to bypass the Union and bargain directly with it by calling meetings with the unit employees 30
without reasonably and timely consulting with and inviting the Union to attend and participate.
At the meetings, she contends, E.C. handed out the new insurance plan options to the
employees and instructed them to choose one for which they would, contrary to their
agreement, now have to pay premiums. The General Counsel submits this unlawful act was
essentially exacerbated by E.C.’s later telling the employees that they had to return the signed 35
forms or lose their insurance.
The General Counsel asserts that on bottom, E.C. gathered the unit employees,
engaged them directly in the proposal, and then implemented it—all without sufficient
notification to the Union and inviting its participation at the meeting. The General Counsel 40
contends this action constituted an impermissible bypassing of the Union and direct dealing with
represented employees.
Turning to the alleged failure to provide information charges, the General Counsel
argues that the law is crystal clear in that an employer has a duty to furnish relevant requested 45
information to its employees’ exclusive collective-bargaining representative so that the
representative can adequately perform its duties to the employees.
Noting that where the sought information is related to the terms and conditions of the
unit employees, here health insurance benefits, the Board considers such information 50
presumptively relevant.
The General Counsel submits that Navin’s written request of August 24, 2010, clearly
sought information relevant and necessary for him to process Winter’s grievance relative to the
health insurance issue.55
JD–48–11
15
The General Counsel submits that E.C., who testified that he was responsible at the time 5
for the operations of the Company, admitted to having seen the information request but took
absolutely no action to provide the information or explain why he was not providing it. The
General Counsel contends that this failure was violative of Section 8(a)(5) of the Act.
The Respondent asserts that the Union and, of course, the Company were fully aware 10
that health insurance costs had become prohibitive and that at some point employees had to
start paying a portion of the premium costs. Contrary to the General Counsel, the Respondent
contends that Navin and E.C. did indeed bargain and in good faith prior to presenting the issue
to the gathered unit employees in July. Moreover, and again contrary to the General Counsel,
the Respondent asserts that Navin specifically approved E.C.’s proposal to have the employees 15
pay a small portion of the premiums for their health coverage.
The Respondent contends that in point of fact, the collective-bargaining agreement was
not signed until after both employee meetings—on July 26—and that the Union and the
Company clearly had reached a meeting of the mind, an understanding, that the unit employees 20
would be making a contribution toward the premium costs. The Respondent submits that if, as
Navin seemed to be saying, the Union did not have this understanding, he should have written
this into the contract.
Conceding that health insurance is a mandatory subject of collective bargaining, the 25
Respondent, nonetheless, submits that the Union gave no clear indication to E.C. that it
believed the Company was failing or refusing to bargain over the issue. The Respondent
contends that E.C. believed that if there were an issue, the Union could or should have made a
counterproposal; but the Union did not. Accordingly, the Respondent contends that E.C.
rightly believed that his discussions with Navin prior to the meeting constituted sufficient and 30
legitimate—good faith—bargaining with adequate notice to the Union prior to the employee
meetings.
In essence, the Respondent contends that the Company did not breach the contract
because the Union did not establish that the Company actually agreed to pay 100 percent of the 35
health insurance premiums effective August 1, 2010. The Respondent submits that Navin’s
claim that Chuck Muelhaupt repeatedly gave him assurances that the Company would continue
to pay the entirety of the health premiums should be discredited, especially since E.C. denied
any such agreement.
40
The Respondent concludes that there was no unilateral action on its part regarding the
health insurance issue, that in point of fact there was an understanding and agreement by the
parties on the subject, arrived at mutually with notice and after bargaining, that the employees
would contribute a part of the premiums. The Respondent contends that it did not violate the
Act in any respect regarding the health insurance issue.45
Turning to the remaining complaint allegation dealing with (presumably) the failure to
provide information, the Respondent states that the “ensuing attempted grievance” merely
reflected the Union’s dissatisfaction with the deal it had made.28
50

28 This is, in main, the Respondent’s entire argument on the information request allegations.
At the risk of some speculation on my part, it seems that the Respondent contends that since
the grievance was illegitimate or based on a kind of buyer’s remorse, any information requested
based on it was improper and the Respondent was not bound to honor the information request.
The Respondent cited no legal authority on this point if indeed this was its argument.
JD–48–11
16
APPLICABLE LEGAL PRINCIPLES5
Section 8(a)(5) of the Act states that an employer must bargain collectively with the
representatives of its employees and “confer in good faith with respect to wages, hours, and
other terms and conditions of employment.” Health insurance and medical benefits constitute
mandatory subjects of bargaining, and it is therefore unlawful for an employer to change health 10
care benefits without the bargaining union’s consent. See E.I. DuPont De Nemours, Louisville
Workers, 355 NLRB No. 176 slip op. at 11 (2010), citing Mid-Continent Concrete, 336 NLRB
258 (2001), enfd. 308 F.3d 859 (8th Cir. 2002). Furthermore, an employer’s attempt to bypass
the union and bargain directly with employees constitutes a violation of Section 8(a)(5) and (1)
of the Act. United Cerebral Palsy of New York City, 347 NLRB 603, 608 (2006).15
The Respondent must hold to a clear and unmistakable duty under the Act to bargain in
good faith. The Board has found that dilatory and evasive negotiation tactics, such as the
failure to express a willingness to bargain or meet at reasonable times, are evidence of
subjective bad faith. See J & C Towing Co.2920
Notably, consistent with Section 8(a)(5), Section 8(d) of the Act “imposes an obligation
on each party to a contract to refrain from modifying the contract without complying with the
notice and waiting periods therein set forth.” Oak Cliff-Golman Baking Co., 202 NLRB 614, 616
(1973). Section 8(a)(5) and 8(d) combine to establish an employer’s obligation to bargain in 25
good faith with respect to “wages, hours, and other terms and conditions of employment . . .”
before reaching a good-faith impasse in bargaining. Milwaukee Spring II, 268 NLRB 601, 602
(1984). Section 8(d) imposes an additional requirement when a collective-bargaining
agreement is in effect and an employer seeks to “modif[y] . . . the terms and conditions
contained in the contract; [In such a case] the employer must obtain the union’s consent before 30
implementing the change.” Id.
Unless a legitimate (good-faith) impasse is reached, employers may not make unilateral
changes to the collective-bargaining agreement. The Supreme Court has held that an
employer’s unilateral change to conditions of employment may pose a violation of Section 35
8(a)(5). Unilateral change is defined as a ”circumvention of the duty to negotiate which
frustrates the objectives of 8(a)(5) much as does a flat refusal.” NLRB v. Katz, 369 U.S. 736,
743 (1962). An employer may not make a unilateral change to a term or condition of
employment before reaching a good faith impasse in bargaining, and “an employer commits an
unfair labor practice, if, without bargaining to impasse, it effects a unilateral change of an 40
existing term or condition of employment.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 198
(1991). An impasse occurs at “that point in time of negotiations when the parties are warranted
in assuming that further bargaining would be futile . . . . Both parties must believe that they are
at the end of their rope.” PRC Recording Co., 280 NLRB 615, 635 (1986); Truserv Corp. v.
NLRB, 254 F.3d 1105, 1114 (2001).45
An employer’s unilateral change to a matter that is a subject of mandatory bargaining
under Section 8(d)of the Act is a violation of the duty to bargain collectively, as required by
Section 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962). Insurance benefits for
employees are considered among those matters that are subjects of mandatory bargaining, and 50
an employer’s unilateral modification of such benefits may constitute an unfair labor practice.

29 307 NLRB 198 (1992). In J & C Towing Co., the Board found that the employer engaged
in bad-faith bargaining, describing the employer’s single bargaining session a “sham” when it
stalled on agreeing to the meeting and then dragging its feet in addressing specific topics during
the negotiations.
JD–48–11
17
Allied Chemical & Alkali Workers of America, Local Union No 1 v. Pittsburgh Plate Glass Co., 5
404 U.S. 157 (1971).30 Any material, substantial, or significant changes made by an employer
to an employee’s health insurance benefits has been determined to be violative of Section
8(a)(5) and (1) if that employer has not first provided the employees’ bargaining representative
notice and an opportunity to bargain. Pioneer Press, 297 NLRB 972, 976 (1990).
10
In Disneyland Park,31 the Board set out long-established principles applicable to
information request cases brought under Section 8(a)(5) and (1) of the Act.
An employer has the statutory obligation to provide, on request, relevant information that
the union needs for the proper performance of its duties as collective-bargaining representative. 15
NLRB v. Truitt Mfg. Co., 351U.S. 149, 152 (1956); NLRB v. Acme Industrial Co., 385 U.S. 432,
435–436 (1967). Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979). This includes the decision
to file or process grievances. Beth Abraham Health Services, 332 NLRB 1234 (2000).
Where the union’s request is for information pertaining to employees in the bargaining20
unit, that information is presumptively relevant and the Respondent must provide the
information. However, where the information requested by the union is not presumptively
relevant to the union’s performance as bargaining representative, the burden is on the union to
demonstrate relevance. Sunrise Health & Rehabilitation Center, 332 NLRB 1304 (2000).
Associated Ready Mixed Concrete, 318 NLRB 318 (1995), enfd. 108 F.3d 1182 (9th Cir. 1977); 25
Pfizer, Inc., 268 NLRB 916 (1984), enfd. 736 F.2d 887 (7th Cir. 1985). A union has satisfied its
burden when it demonstrates a reasonable belief, supported by objective evidence, that the
requested information is relevant. Knappton Maritime Corp., 292 NLRB 236, 238–239 (1988).
Furthermore, the Board instructs that the requesting union’s explanation of relevance 30
must be made with some precision; and a generalized conclusionary explanation is insufficient
to trigger an obligation to supply information.32
The Board has held that information concerning bargaining unit employees is
presumptively relevant and is required to be produced. Contract Flooring System, 344 NLRB 35
925, 938 (2005).
Where the information sought concerns the filing or processing of grievances, the
requesting union is entitled to the information in order to determine whether it should exercise its
representative function in the pending grievances, or whether the information will warrant further 40
processing of the grievance or bargaining about the matters involved with the grievance. Ohio
Power Co., 216 NLRB 987 (1975), enfd. 531 F.2d 138 (6th Cir. 1976).

30 If it Is argued that the Union has waived its right to bargain over such mandatory subjects,
the waiver must be clear and unmistakable. Metropolitan Edison Co. v. NLRB, 460 U.S. 693,
708 (1983).
31 350 NLRB 1257 (2007).
32 Island Creek Coal, 293 NLRB 480, 490 fn. 19 (1989). See Schrock Cabinet Co., 339
NLRB 182, 182 fn. 6 (2000). It should be noted that the obverse side of this legal coin requires
the employer from whom information is sought to substantiate the claimed basis for
nonproduction, seek a narrowing or clarification of the union’s request if it is overly broad,
burdensome, or presents undue financial burden; and seek protection if the production involves
confidential (proprietary) information. See Island Creek Coal Co., supra. Pulaski Construction
Co. , 345 NLRB 931 (2005), Watkins Contracting Inc., 335 NLRB 22 (2001) Earthgrains Baking
Co., 327 NLRB 222 (2001), 327 NLRB 605 (1999).
JD–48–11
18
Accordingly, a union is entitled to relevant information during the term of a collective-5
bargaining agreement to evaluate or process grievances and to take whatever other bona fide
actions are necessary to administer the collective-bargaining agreement. Reno Sparks Citilift,
326 NLRB 432 (1998).
The Board uses a broad, discovery-type standard in determining the relevance of 10
requested information. Potential or probable relevance is sufficient to give rise to an employer’s
obligation to provide information. Id. To demonstrate relevance, the General Counsel must
present evidence either (1) that the union demonstrated relevance of the nonunit information,33
or (2) that the relevance of the information should have been apparent to the Respondent under
the circumstances. See Allison Co., 330 NLRB 1363, 1367 fn. 23 (2000); Brazos Electric Power 15
Cooperative, Inc., 241 NLRB 1016–1019 (1979), enfd. in relevant part 615 F.2d 1100 (5th Cir.
1980). Absent such a showing, the employer is not obligated to provide the requested
information.
When the union’s request for information involves matters outside the bargaining unit, 20
thereby making the burden or requirement that it demonstrate relevance of the information
sought, the union’s burden is not an exceptionally heavy one, essentially only requiring a
showing of probability that the desired information is relevant and that it would be of use to the
union in carrying out its statutory duties and responsibilities. NLRB v. Acme Industrial Co.,
supra at 437.3425
DISCUSSION AND CONCLUSIONS
The gist of the Respondent’s defense is that the parties’ contract as of July 20 and 23,
2010, was not finalized because one item—the health insurance—was not resolved. Because 30
the contract was not formerly in place, the Respondent contends that it was free to propose and
make adjustments governing the employees’ contribution to the insurance premiums. The
Respondent believes that it gave sufficient notice to the Union on July 20 prior to the first
employee meeting, discussed the matter prior to the meeting with the Union, and obtained the
Union’s permission to present the premium contribution plan to the assembled unit members. 35
Having taken all of the reasonable steps one could associate with the duty to bargain in good
faith, that is, giving prior notice, actually bargaining over the matter, and then seeking and
obtaining permission from the Union to speak to the employees directly about the Company’s
proposal, the Respondent asserts it did not violate the Act.
40
As to the Company’s failure to provide the information requested by the Union, the
Respondent, at least according to E.C., contends the grievance was filed untimely under the
parties’ agreement, and a fortiori the Company was under no duty to provide the requested
information based on the noncompliance with the agreement.35
45
I have considered this defense which, in large measure would require me to discredit
the testimony of the union representatives, Navin and Winters, something I decline to do. First I

33 The Board noted further in Disneyland Park that it will apply a uniform standard for
evaluating the relevance of information requests involving matters outside the bargaining unit.
34 See, also, St. George Warehouse, Inc., 341 NLRB 904, 925 (2005), citing Hertz Corp.,
319 NLRB 597, 599 (1995), wherein the union’s showing of relevance was deemed not
exceptionally heavy and would be satisfied by some initial but not overwhelming demonstration
by the union.
35 The Respondent, I should note, did not articulate its defense precisely as I have set out.
This is my interpretation of the position taken by the Company.
JD–48–11
19
found that Navin and Winters, but primarily Navin, were both exceptionally credible witnesses 5
and, moreover, the records essentially corroborated the Union’s position.
In rejecting the Respondent’s defense, I have given great weight to the parties’ historical
relationship which by all accounts was a very good one, amicable and longstanding. It seems
that over the decades the parties had so little in the way of contract-related disputes that Navin, 10
a relative newcomer to the negotiations, viewed the shop as low pressure. Winters, a 15-year
employee confirmed the parties' good and stable management-labor relationship. In point of
fact, at least as to the health insurance matter according to Winters, the Company had always
paid 100 percent of the insurance premiums during the 15 years he has worked for the
Company.15
Given this good and stable relationship, it seems unlikely to me that the parties had not
come to an enforceable agreement by July 20, 2010. I note that at the time of the proposed
changes by E.C., the parties were not in ongoing negotiations which, as Navin said, had
concluded in May. Even E.C. admitted that during the negotiations, the parties did not really 20
discuss health insurance provisions. This lends further credence to Navin’s testimony that aside
from his suggestion about the Central States plan, the Respondent (Chuck and E.C.) did not
propose any changes either to the employee’s health insurance benefits or the method by which
health insurance premiums would be paid.
25
I also credit Navin who stated that the contract for 2010–2013 was ratified and in full
force and effect as of May 2010. Notably, on this point, he stated without contradiction that the
negotiated wage increases under the new contract had been received by unit members;
Winters, an employee who would know also, testified again without contradiction that he had
received the new wage rates.30
I note also that E.C. did not contend that the parties had reached an impasse on the
health insurance matter, and clearly on this record none was reached, at least not in any formal
way that would alert the Union that the insurance premiums were an issue for the Company.
35
On bottom, it seems abundantly clear to me that the parties’ 2010–2013 contract was
already in place prior to July 23 or 26, 2010, the days on which the parties formally signed the
document. I note on this score that Article 14 of the new contract was essentially identical to
that of the previous (2007–2010) contract with exception of the omission of some language
whose absence Navin credibly explained.40
E.C. testified that the essentially unchanged language reflected, nonetheless, the
parties’ “understanding” that the unit members would now have to pay something toward the
premiums. The weakness of this position is exposed in that if there were such an
“understanding,” the amount or percentage the employees were to pay is not clearly stated. It 45
defies common sense to think that the parties with a long term relationship would leave such an
important matter to a vague notion as to what the employees would be required to contribute.
This is not set out in the agreement because, as I view the matter, the new contract as
agreed upon did not require any contributions from the unit members just as it had not in the 50
past. In my view, the Respondent unilaterally changed the parties’ agreement concerning a
mandatory subject of bargaining—the employees’ health insurance coverage and premiums—
effective about August 1, 2010. In so doing, the Respondent violated Section 8(a)(5) of the Act.
As to the Respondent’s claim that in speaking to Navin about a half-hour prior to the July 55
20 employee meeting, it satisfied its duty to provide notice to the Union of the proposed
JD–48–11
20
changes and at the same time give the Union an opportunity to bargain over the matter, I would 5
find and conclude that the Respondent did not meet its good-faith bargaining obligations.
First, the Respondent did not on its own volition notify Navin. I believe Navin only found
out about the first meeting because Winters alerted him. Navin, out of duty, went to the plant
and discussed the matter with E.C. However, I believe any “discussion” between E.C. and 10
Navin redounded merely to Navin’s vocal opposition to E.C.’s plan and E.C.’s insistence and
persistence in going forward with his plan. Under these circumstances, to include a half-hour’s
notice which in my view provided no real opportunity to bargain over the proposal, coupled with
the Respondent’s already made decision to proceed with the meeting and broach the proposed
changes, I would find and conclude that the Respondent did not bargain in good faith and 15
violated the Act.
I also would credit Navin’s denial that he gave E.C. permission to deal directly with the
unit members of the issue. Contrary to the Respondent’s witnesses, I would credit his denial of
attending the July 20 meeting for the reasons he stated. As to the testimony of witnesses 20
Larsen and Trimnell, both of whom claimed that Navin attended one of the two employee
meetings, I believe they were simply mistaken.
Clearly Navin was onsite on July 20, speaking with E.C. in the hallway outside of the
break room where the meeting was shortly to take place. Larsen and Trimnell probably 25
observed him at the time and wrongfully concluded that he attended the meeting.
Notably, Trimnell believed she observed Navin at the second meeting on July 23 when
the record clearly established that Navin came to the East Plant on July 20. On the other hand,
aside from Navin’s denial of attending, Winters testified credibly Navin left the plant but 30
instructed him to report on the meeting. All in all, Navin in my mind did not grant E.C.
permission to broach the proposal to the unit members and in that respect, E.C. improperly
directly dealt with the unit members in violation of the Act.
This brings me to failure to provide information allegations. Notably, it is undisputed that 35
the Union filed a grievance over the Respondent’s actions on or about August 9 or 10. Again in
service to my earlier findings, this grievance is inconsistent with any contention that the Union
gave permission to the Respondent to broach health insurance proposals to the unit or that
there was an “understanding” that the Union and the Company agreed to the health insurance
premium contribution. Both Navin and Winters testified credibly regarding the Union’s decision 40
to pursue the grievance. Furthermore, Winters credibly explained his decision to wait until the
Company made initial deductions for the health insurance premiums.
I note that the new contract (2010–2013) requires in Article 9 that all grievances must be
put in writing within 7 working days from the day the cause for the grievance occurred and 45
signed by the aggrieved employee. This change to the employee contributions for health
insurance were to become effective August 1, 2010, a Sunday. Winters filed his grievance on
August 11, the day after the first deductions were made from his paycheck. The seventh
working day for purposes of filing grievances was arguably August 10. In this regard,
Respondent could have determined that the grievance was indeed untimely. However, in my 50
view, that is a moot point because the Respondent made absolutely no reply or response either
to the grievance or the information request based thereon on August 24, 2010. Any defense to
the information request should have been made at that time. The Respondent, however, chose
not to respond to the grievance as well as information request based thereon.
55
JD–48–11
21
As to the information request, I would find and conclude that the information sought was 5
clearly relevant to the Union’s duties to the bargaining unit as its exclusive representative.
Accordingly, I would find and conclude that the Respondent violated Section 8(a)(5) and (1) of
the Act by not providing the information requested by the Union on August 24, 2010.
CONCLUSIONS OF LAW10
1. The Respondent, Des Moines Cold Storage, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The bargaining unit as described in the collective-bargaining agreement between the 15
Respondent and the unit effective April 1, 2010, through March 31, 2013, is an appropriate unit
for collective bargaining within the meaning of Section 9(b) of the Act.
3. The Union, General Team and Truck Drivers, Helpers and Warehousemen, Local 90
is a labor organization within the meaning of Section 2(5) of the Act and has been recognized in 20
the parties’ agreement as the designated exclusive collective-bargaining representative of the
unit as stated above.
4. The Respondent violated Section 8(a)(5) and (1) of the Act by:
25
(a) bypassing the Union and directly dealing with unit employees concerning their
health insurance benefits and unilaterally offering unit employees new health insurance options.
(b) unilaterally modifying the terms of the parties’ collective-bargaining agreement
without the Union’s consent, notice, or opportunity to bargain over the modification.30
(c) unilaterally making changes in the unit employees’ health insurance benefits
without first notifying the Union, giving it an opportunity to bargain, and bargaining in good faith
to impasse.
35
(d) failing and refusing to timely provide the Union with the information requested by it
in a letter dated August 24, 2010, sent to and received by the Respondent on about August 26,
2010.
The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) 40
and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in unfair labor practices, I recommend that45
the Respondent cease and desist therefrom and take additional affirmative action necessary to
effectuate the policies of the Act.
Having found that the Respondent violated Section 8(a)(5) and (1) of the Act by
unilaterally modifying the terms of the parties’ collective-bargaining agreement regarding the 50
unit members’ health insurance benefits, the Order will require the Respondent to restore to
bargaining unit employees, at the Union’s request, the health insurance coverage they enjoyed
before the Respondent unlawfully changed such coverage in August 2010; to make all
bargaining unit employees whole for all losses they may have suffered as a result of the
Respondent’s unlawful unilateral change plus daily compound interest as prescribed in 55
JD–48–11
22
Kentucky River Medical Center, 356 NLRB No. 8 (2010); and to furnish at the Union’s request 5
the relevant information called for in its August 24, 2010 letter.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended36
10
ORDER
The Respondent, Des Moines Cold Storage, Inc., of Des Moines, Iowa, its officers,
agents, successors, and assigns, shall:
15
1. Cease and desist from
(a) bypassing the Union and directly dealing with unit employees concerning their
health insurance benefits and unilaterally offering unit employees new health insurance options.
20
(b) unilaterally modifying the terms of the parties’ collective-bargaining agreement
without the Union’s consent, notice, or opportunity to bargain over the modification.
(c) unilaterally making changes in the unit employees’ health insurance benefits
without first notifying the Union, giving it an opportunity to bargain, and bargaining in good faith 25
to impasse.
(d) failing and refusing to timely provide the Union with the information requested by it
in a letter dated August 24, 2010, sent to and received by the Respondent on about August 26,
2010.30
(e) refusing to bargain collectively and in good faith with General Team and Truck
drivers, Helpers and Warehousemen, Local 90.
(f) In any like or related manner interfering with, restraining, or coercing employees in 35
the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) On written request of the Union, restore to bargaining unit employees the health 40
insurance benefits and coverage they enjoyed before the Respondent unlawfully changed the
benefits and coverage in August 2010; make all bargaining unit employees whole for all losses
they may have suffered as a result of the Respondent’s unlawful unilateral changes, plus daily
compound interest as proscribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
45
(b) On written request of the Union furnish to it within a reasonable time (not to
exceed 30 days from the date of the request) the information requested by the Union in its letter
dated August 24, 2010, to the Respondent.
50

36 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec,
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
JD–48–11
23
(c) Within 14 days after service by the Region, post at its facilities in Des Moines, 5
Iowa, copies of the attached notice marked “Appendix.”37 Copies of the notice, on forms
provided by the Regional Director for Region 18, after being signed by the Respondents’
authorized representative, shall be posted by the Respondents and maintained for 60
consecutive days in conspicuous places including all places where notices to employees are
customarily posted. In addition to physical posting of paper notices, notices shall be distributed 10
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic
means, if the Respondents customarily communicate with employees by such means.
Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered,
defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondents have gone out of business or closed the facilities involved in 15
these proceedings, the Respondents shall duplicate and mail, at their own expense, a copy of
the notice to all current employees and former employees employed by the Respondents at any
time since August 1, 2010.
(d) Within 21 days after service by the Region, file with the Regional Director a sworn 20
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondents have taken to comply.
Dated, Washington, D.C. August 17, 2011
25
_____________________
Earl E. Shamwell Jr.
Administrative Law Judge
30

37 If this Order is enforced by a judgment of a United States court of appeals, the words on
the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT bypass the Union as our employees’ exclusive collective-bargaining
representative by directly dealing with unit employees concerning their health insurance benefits
or any other matter regarding their wages, hours, and other terms and conditions of
employment.
WE WILL NOT unilaterally modify the terms of our collective-bargaining agreement with the
Union without the Union's consent.
WE WILL NOT make unilateral changes in our bargaining unit employees’ health insurance
benefits or any other terms and conditions of employment without first notifying the Union, giving
the Union an opportunity to bargain, and bargaining in good faith to impasse.
WE WILL NOT refuse to provide to the Union the requested information which is necessary and
relevant to the Union’s performance of its functions as our bargaining unit employees’ exclusive
collective-bargaining representative.
WE WILL NOT otherwise fail and refuse to bargain in good faith with the Union as the exclusive
collective-bargaining representative of our employees.
WE WILL, at the Union’s request, reinstate the same health insurance plan and benefits in
effect for our bargaining unit employees before we implemented unilateral changes in those
benefits in about August 2010.
WE WILL make all bargaining unit employees whole for any and all losses—including premium
payments and out-of-pocket medical expenses—incurred as a result of the unilateral changes in
health insurance benefits were implemented in about August 2010.
WE WILL, at the request of the Union, provide to the Union requested information that is
necessary and relevant to its performance of its collective-bargaining functions, as listed in its
written information request letter dated August 24, 2010.
WE WILL bargain in good faith with the Union as the exclusive collective-bargaining
representative of our employees.
DES MOINES COLD STORAGE, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Resident Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
210 Walnut Street - Room 439
Des Moines, IA 50309-2103
Hours: 8:00 am - 4:30 pm (CST)
Telephone: (515) 284-4391
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER. (515) 284-4980