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

National Labor Relations Board - Board Decisions

Aug 2, 2018

366 N.L.R.B. 143 (N.L.R.B. 2018)

366 NLRB No. 143
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.
Mike-Sell’s Potato Chip Company and International
Brotherhood of Teamsters (IBT), General Truck
Drivers, Warehousemen, Helpers, Sales, and
Service, and Casino Employees, Teamsters Lo-
cal Union No. 957. Case 09–CA–184215
August 2, 2018
ORDER REMANDING
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On July 25, 2017, Administrative Law Judge Andrew
S. Gollin issued his decision in this proceeding finding
that the Respondent violated Section 8(a)(5) and (1) of
the Act by failing to give the Union notice and an oppor-
tunity to bargain about its decision to sell four company
sales routes to independent distributors and by failing to
provide the Union with requested information related to
the sale of the routes. The Respondent filed exceptions
and a supporting brief, the General Counsel and the Un-
ion filed answering briefs, and the Respondent filed reply
briefs.1
In finding that the Respondent unlawfully failed to
bargain about its decision to sell the four sales routes, the
judge rejected the Respondent’s defense that, assuming
the sale of the routes was a mandatory subject of bargain-
ing, its decision was consistent with its past practice of
selling routes to independent distributors. Citing E.I. du
Pont de Nemours, 364 NLRB No. 113 (2016) (DuPont
2016), the judge reasoned that the Respondent could not
rely upon its prior unilateral decisions to sell routes to
independent distributors both before and after the expira-
tion of the parties’ collective-bargaining agreement.
After the issuance of the judge’s decision, the Board
issued its decision in Raytheon Co., 365 NLRB No. 161
(2017), in which the Board majority expressly overruled
the majority’s holding in DuPont 2016 and the precedent
upon which that holding relied. In light of the holding in
Raytheon, we remand this case to the judge for further
consideration, to include permitting the parties to file
supplemental briefs to the judge. Further, the judge may
reopen the record to obtain evidence relevant to deciding
this issue.

1 On January 9, 2018, the Respondent filed a motion and supporting
brief for leave to file supplemental authority in support of its excep-
tions. In its brief, the Respondent contends that the Board’s recent
decision in Raytheon Co., 365 NLRB No. 161 (2017), provides further
support for its past practice defense.
ORDER
IT IS ORDERED that this proceeding is remanded to
Administrative Law Judge Andrew S. Gollin for appro-
priate action as set forth above.
IT IS FURTHERED ORDERED that the judge shall prepare
a supplemental decision setting forth credibility resolu-
tions, findings of fact, conclusions of law, and a recom-
mended Order. Copies of the supplemental decision shall
be served on all parties, after which the provisions of
Section 102.46 of the Board's Rules and Regulations
shall be applicable.
Dated, Washington, D.C. August 2, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Linda Finch, Esq., for the General Counsel.
Jennifer Asbrock, Esq., for the Respondent.
John R. Doll, Esq., for the Charging Party.
DECISION
I. INTRODUCTION1
ANDREW S. GOLLIN, ADMINISTRATIVE LAW JUDGE. This case
was tried in Cincinnati, Ohio, from May 31 through June 2,
2017. The complaint, as amended, alleges that Mike-Sell’s
Potato Chip Company (Respondent) violated Section 8(a)(5)
and (1) of the National Labor Relations Act (the Act) by: (1)
failing or refusing to bargain with the International Brother-
hood of Teamsters (IBT), General Truck Drivers, Warehouse-
men, Helpers, Sales and Service, and Casino Employees,
Teamsters Local Union No. 957 (Union) about the decision to
sell four company sales routes to independent distributors; (2)
failing to bargain with the Union prior to selling two delivery
vehicles to independent distributors; and (3) refusing to provide
the Union with requested information related to the sale of the

1 Abbreviations in this decision are as follows: “Tr.” for transcript;
“Jt. Exhs.” for Joint Exhibits; “GC Exh.” for General Counsel’s Exhib-
it; “C.P. Exh. ” for Charging Party’s Exhibit; “R. Exh. ” for Respond-
ent’s Exhibit; “GC Br. _” for General Counsel’s brief; “C.P. Br. _” for
Charging Party’s brief; and “R. Br.” for Respondent’s brief.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
company sales routes. Respondent denies the alleged viola-
tions, contending its decision to sell the routes was not a man-
datory subject of bargaining. And, even if it had been, Re-
spondent argues the Union waived its right to bargain over the
decision, which obviates the Union’s claimed need for the re-
quested information. Respondent contends the allegation over
the vehicle sales has no merit and is untimely under Section
10(b) of the Act. Based upon the evidence and applicable law, I
find the decision to sell the four sales routes amounted to sub-
contracting of unit work, which is a mandatory subject of bar-
gaining. I further find that the Union did not waive its right to
bargain, and that the requested information was both relevant
and necessary to the Union for its role as bargaining representa-
tive. As for the sale of the delivery vehicles, the General Coun-
sel’s post-hearing brief does not address this allegation, and,
thus, it appears to have been abandoned. In any event, I find
the allegation is barred under Section 10(b) of the Act, because
the Union had constructive notice of those sales more than 6
months prior to the filing of the amended charge.
II. STATEMENT OF THE CASE
On September 14, 2016, the Union filed an unfair labor prac-
tice charge against Respondent, docketed as Case 09–CA–
184215, alleging violations of the Act related to the sale of the
routes. On December 9, 2016, the Union filed a first-amended
charge in Case 09–CA–184215. Based on its investigation, on
March 17, 2017, the Regional Director for Region 9 of the Na-
tional Labor Relations Board (the Board) issued a complaint
against Respondent alleging that it violated Section 8(a)(5) and
(1) of the Act when it failed to bargain with the Union regard-
ing the decision to sell the four routes and when it failed or
refused to provide the Union with the requested information.
On March 27, 2017, Respondent filed its answer, and, on April
24, 2017, filed its amended answer, denying the alleged viola-
tions of the Act.
On May 31, 2017, prior to the start of the hearing, the Union
filed a second-amended charge in Case 09–CA–184215, adding
an allegation that Respondent violated Section 8(a)(5) and (1)
of the Act since September 2016, when it unilaterally changed
terms and conditions of employment by entering into contracts
to sell owner-operator equipment. At the conclusion of its
case-in-chief, the General Counsel orally moved to amend the
complaint to include allegations that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act when it unilaterally sold two
delivery vehicles without bargaining with the Union. At the
hearing, Respondent denied the amended allegations, as both
untimely and without merit. (Tr. 220–221; 1062–1064.)
At the hearing, all parties were afforded the right to call, ex-
amine, and cross-examine witnesses, present any relevant doc-
umentary evidence, and argue their respective legal positions
orally. Respondent, Charging Party, and General Counsel filed
post-hearing briefs, which I have carefully considered. Accord-
ingly, based upon the entire record, including the post-hearing
briefs and my observations of the credibility of the witnesses, I
make the following2
III. FINDINGS OF FACT3
A. Jurisdiction
Respondent is a corporation with an office and place of busi-
ness in Dayton, Ohio (Respondent’s facility), and has been
engaged in the manufacture and distribution of snack foods. In
conducting its operations during the 12-month period ending
March 15, 2017, Respondent has purchased and received goods
at its facility valued in excess of $50,000 directly from points
outside the State of Ohio. Respondent admits, and I find, that it
has been an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and that the Union is
a labor organization within the meaning of Section 2(5) of the
Act. Based on the foregoing, I find this dispute affects com-
merce and that the Board has jurisdiction of this case, pursuant
to Section 10(a) of the Act.
B. Collective-Bargaining Relationship
For over 30 years, Respondent has recognized the Union as
the exclusive collective-bargaining representative of the follow-
ing appropriate unit of Respondent’s employees, within the
meanings of Section 9(a) and (b) of the Act:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s]
Dayton Plant, Sales Division and at [Respondent’s] Sales
Branch in Cincinnati, Columbus, Greenville, Sabina and
Springfield, Ohio and all over the road drivers employed by
[Respondent], but excluding all supervisors, security guards,
and office clerical employees employed by [Respondent].
Respondent’s recognition of the Union as the collective-
bargaining representative of the above unit has been embodied
in a number of successive collective-bargaining agreements,
with the most recent agreement being in effect from November
17, 2008, to November 17, 2012.4
The following are provisions contained in the parties’ most-
recent collective-bargaining agreement:
ARTICLE VIII-B
ROUTE BIDDING
Section 5 In the event that it becomes necessary to eliminate a
route or combine one route with another, employees affected
shall have the right to displace a less senior employee. How-
ever, displacements shall be restricted to the employees’ ser-
vice location.
ARTICLE XIV
OWNER-DRIVER EQUIPMENT
Section 1 The Company agrees that it will not employ or con-

2 On July 7, 2017, Respondent filed a motion to correct approxi-
mately 100 typographical errors in the transcript. After reviewing the
transcript, I grant Respondent’s unopposed motion.
3 Although I have included citations to the record to highlight par-
ticular testimony or exhibits, my findings and conclusions are not based
solely on those specific record citations, but rather on my review and
consideration of the entire record for this case.
4 The Union also is the exclusive bargaining representative of Re-
spondent’s warehouse employees, which are in separate unit and cov-
ered by a separate collective-bargaining agreement.
MIKE-SELL’S POTATO CHIP CO. 3
tract for owner-driver equipment, and that the Company shall
not rent, lease or sublease equipment to members of the Un-
ion or any other individual, firm, cooperation or partnership
which has the effect of defeating the terms and provisions of
this Agreement.
ARTICLE XIX
MANAGEMENTS RIGHTS
Section 1 Management of the plant and the direction of the
working force, including the right to hire, promote, suspend
for just cause, disciplining for just cause, discharge for just
cause, transfer employees and to establish new job classifica-
tions, to relieve employees of duty because of lack of work or
economic reasons, or other reasons beyond the control of the
company, the right to improve manufacturing methods, opera-
tions and conditions and distribution of its products, the right
to maintain discipline and efficiency of employees is exclu-
sively reserved to the company. It is understood however, that
this authority shall not be used by the company for the pur-
pose of discrimination against any employee because of their
membership in the union, and that no provision of this para-
graph shall in any way interfere with, abrogate or be in con-
flict with any rights conferred upon the union or its members
by any other clause contained in this agreement, all of which
are subject to the grievance procedure.
(Jt. Exh. 1.)
C. Background
1. Respondent’s operations
Respondent is headquartered in Dayton, Ohio, and has two
production facilities: one in Dayton, where it manufactures its
potato chips, and one in Indianapolis, Indiana, where it manu-
factures its extruded corn products. Respondent currently has
one distribution center, located in Dayton, Ohio.5 Respondent
distributes its snack products to Ohio, Indiana, Illinois, Ken-
tucky, Pennsylvania, and Michigan. (Tr. 232–233.)
Respondent has two distribution methods: direct store deliv-
ery and warehouse or direct sales. The direct store delivery
method is where a salesperson travels around to retail custom-
ers within a geographic territory to take orders and deliver
products. The warehouse or direct sales method is where a re-
tailer (e.g., Big Lots) purchases and picks up products from
Respondent and then distributes the products out to the retail-
er’s individual stores. (Tr, 233–234.)
Direct store delivery is handled by route sales drivers and in-
dependent distributors. Route sales drivers are bargaining unit
employees represented by the Union. As the title indicates,
these drivers are assigned a route and are responsible for servic-
ing the customers (e.g., grocery stores, retail stores, gas sta-
tions, restaurants, etc.) on that assigned route. Their duties
include reviewing orders, loading their company-owned trucks
with product, traveling to customers, stocking customer
shelves, rotating unsold product, performing point-of-sale mar-
keting, and removing expired product. The drivers track or-
ders, deliveries, and sales using a company-owned handheld

5 Prior to 2012, Respondent had six distribution centers in Ohio
(Cincinnati, Columbus, Sabina, Springfield, Greenville, and Dayton).
electronic device. Route sales drivers are paid a commission
based on the type and amount of product they sell, as well as
additional benefits (e.g., health and welfare benefits, pension,
leave, etc.) per the collective-bargaining agreement. The routes
can vary as far as number of customers, size of orders, geo-
graphic proximity, and sales volume. Routes are assigned to
drivers through a seniority-based bidding system.
Independent distributors are individuals or entities that enter
into agreements with Respondent for the primary right to dis-
tribute Respondent’s products within a defined geographic
territory.6 Independent distributors perform the same core tasks
as route sales drivers as far as servicing the customers, but,
unlike the route sales drivers, they assume the costs and liabili-
ties associated with purchasing, storing, transporting, and sell-
ing those products. For example, in addition to paying for the
products they sell, distributors are responsible for acquiring,
maintaining, and insuring their own delivery vehicle(s), storage
location(s), and other tools and equipment. Independent dis-
tributors are paid a contractually-agreed upon margin based on
the type and amount of product they sell, but do not receive any
additional pay or benefits. The specific terms of the arrange-
ment between Respondent and distributors are set forth in the
individual independent distributor agreements.7

6 For the purposes of this case, territory and route are used inter-
changeably. (R. Br. 3, fn. 4.)
7 The following are some of the terms and conditions contained in
the individual distributor agreements. The agreement affords the inde-
pendent distributor the nonexclusive right to buy, sell, and distribute
Respondent’s products in the distributor’s territory. The distributor
agrees to use its best efforts to sell, promote the sale of, and distribute
the products to retailers located within the territory. If there is any
dispute as to the territory boundaries, the final decision is made by
Respondent as to which distributor is to service the territory in ques-
tion, without recourse from the distributors involved. Respondent
agrees to sell and deliver to the distributor, in the quantities required for
the distributor’s wholesale business, and the distributor is expected to
sell the product line available. The distributor understands and agrees
that Respondent may in its sole discretion, at least once annually, adjust
upward or downward any distributor margins, as long as the Respond-
ent provides the distributor with 30-days’ written notice. The distributor
is required to adhere to the delivery and merchandise standards pre-
scribed by its customers and by Respondent, and to submit all invoices
to the Respondent, without exception, within the timeframe set forth in
the agreement. The distributor agrees to maintain sufficient inventory
of products to meet the needs of the retailers in the distributor’s territo-
ry. The distributor agrees to indemnify and hold Respondent harmless
for any and all losses, damages, and expenses in any way connected
with conducting the distributor’s business. To that end, the distributor
agrees to maintain liability insurance at the level set forth within the
agreement. The distributor agrees to accept full responsibility for, and
to pay, all of the costs and expenses incurred by it, or any agent, em-
ployee, or representative authorized to act on the distributor's behalf in
conducting its business. Respondent and the distributor agree that their
relationship is that of a seller and independent buyer, and the distributor
shall remain, while the agreement is in effect, an independent contrac-
tor whose own judgment and sole discretion shall control activity and
movement, the means and methods of distribution, and all other matters
pertaining to its business operations. Respondent has no right to require
the distributor to work any specific place or time for any purpose, to
devote any particular time or hours to the business, to follow any speci-
fied schedule routes, to confine or extend business to any particular
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
In the last several years, Respondent has experienced a
steady decline in its overall net worth ($18 million in 1999, to
$5 million currently). (Tr. 235–236). Phil Kazer, Respondent’s
Executive Vice President of Sales and Marketing, attributed
this decline, in part, to larger competitors, such as Frito-Lay,
being better positioned because of their size to market, pro-
mote, and aggressively price their products; and to grocery and
retail stores, such as Kroger, Meijer, and Walmart, increasingly
selling snack products under their own private labels—both
reducing the retail space available to Respondent to sell its
products. Another reason Kazer cited for the decline in net
worth is the annual losses Respondent has experienced in its
company route sales division (totaling $9 million in losses from
2006 to 2016). (Tr. 243–244). Kazer opined that by using
company route sales drivers Respondent remains responsible
for the costs, both labor and nonlabor, including, but not limited
to, the storing, transporting, and stocking of product, as well as
the cost of any unsold product. (Tr. 245–246.) Kazer testified
that by selling routes to independent distributors, Respondent
transfers this risk of loss from the company onto them.
Kazer testified that in this current changing environment,
Respondent believes its greatest opportunity for growth is to
move away from distributing and focus more on manufacturing
and branding quality products. To that end, over the last sever-
al years, Respondent has been selling company delivery routes
to independent distributors. In around 2012, Respondent had
approximately 70 company driver routes. Today, it has approx-
imately 12 routes. In around 2012, there were approximately
100 routes owned by independent distributors. Today, there are
over 170. (Tr. 246–247.)
2. The 2012 arbitration award
In October 2011, Respondent informed the Union that it in-
tended to sell a remote sales route in Marion, Ohio, to an inde-
pendent distributor (Buckeye Distributing). Respondent was
selling the route because, despite various efforts to make it
profitable, it continued to lose approximately $1100 per week.
Respondent informed the Union it intended to sell the route
within the next 3 or 4 weeks, and that per article VIII-B, section
5 of the parties’ collective-bargaining agreement, the affected
route sales driver (Angie Watson) would be allowed to use her
seniority to bump into another route. The Union filed a griev-
ance over the sale and the matter went to arbitration.8 The Un-

retail customer, to use any specified techniques for soliciting sales or
displaying merchandise, to employ or refrain from employing helpers
or substitutes, to make reports to the company, to keep records other
than those necessary for invoicing, etc. Respondent may, from time to
time, in exercise of its sole judgment, increase or reduce the size of,
replace or transfer/reassign any retail outlet to any other distributor, or
otherwise change the distributor’s territory, but Respondent will notify
the distributor that it is considering such a revision and consult with the
distributor relative to the changes that are being considered. Either
party may terminate this agreement, at will, with or without cause, by
giving 30 days’ written notice to the other party. (Jt. Exh. 12.)
8 The arbitration decision refers to instances in 2009, 2010, and
2011––during the life of the collective-bargaining agreement--in which
Respondent sold routes serviced by unit drivers to independent distribu-
tors in which Respondent notified the Union of the decision, and the
Union did not object. (Jt. Exh. 1.).
ion argued the sale amounted to unlawful subcontracting of unit
work not permitted under the parties’ agreement. Respondent
countered that it was not subcontracting, but rather a change in
the Company’s distribution methods to reallocate risk of un-
profitable routes. Respondent argued it was permitted under
the management-rights clause (art. XIX), and was consistent
with prior sales of routes that occurred without the Union’s
objection. On September 26, 2012, Arbitrator Michael Paoluc-
ci issued his decision. He found that this was not a typical
subcontracting case, but rather a change in the methodology of
how Respondent operated its business—a change that involved
the transfer of an entire business unit (the route), including its
expenses and potential revenue, to a third party. Arbitrator
Paolucci held, in pertinent part:
Absent clear contract language, it must be found that
the management right to control distribution, and deter-
mine profitability allows the action of the Company. The
language that the Union cites, where the parties contem-
plated situations where it “becomes necessary to eliminate
a route or combined one with another” in Article VIII-B,
must be found as supportive of this decision. The “elimi-
nation” of a route is fairly interpreted as either being elim-
ination due to the ending or selling of a route. It would not
be logical to only make the language applicable to a situa-
tion where the Company determines that the lack of profit-
ability only necessitates the complete withdrawal from a
market. The elimination provision must be given a broader
interpretation and it must apply where the lack of profita-
bility could result in either the complete withdrawal from a
market, or the selling of a route thus making the route
eliminated from the Company’s control. This broader
meeting is justified based on the Company’s business
practices as currently configured. Since it has over 100
distribution partners and only 80 [route sales drivers] then
it follows that the parties intended the elimination provi-
sion to cover all transfers of the work from the bargaining
unit member to a third party, or to the ending of the work,
while the other part of the provision covers other situations
where the work is merged with another route.
To find otherwise would mean that the parties knew
enough to address situations where a route was ended
completely when the Company would withdraw from a
market; and they knew enough to address situations when
routes were merged; but that they lacked enough foresight
to understand that routes could be sold and a route could
be eliminated in that fashion. This does not follow since
the Company has had third-party distributors as part of the
business for some time. It is a more reasonable interpreta-
tion that they intended the two (2) instances in the provi-
sion—i.e., “elimination” or “merger” to cover all expected
situations.
Based on the foregoing, it must be found that the lan-
guage supports the analysis above, and expressly address-
es the situation of the Grievant. Her work was eliminated
through the sale of the route and she was given the oppor-
tunity to bump. Her work was not subcontracted, it was
unprofitable and the business was sold to third party.
MIKE-SELL’S POTATO CHIP CO. 5
Based on this analysis it must be found that the company
did not violate the agreement.
(R. Exh. 2, pp. 20–21.)
3. Collective-bargaining negotiations and subsequent
route sales
The parties’ collective-bargaining agreement expired on No-
vember 17, 2012. On October 10, 2012, the parties met for
their first bargaining session over a successor agreement. At
the start of this session, Respondent informed the Union that it
intended to sell its 29 sales routes in Columbus, Sabina, and
Cincinnati, Ohio, effective November 18, 2012. (Tr. 302–303.)
Respondent sold these routes to independent distributor Key-
stone Distributing, Ltd./Buckeye Distributing Company be-
cause of Respondent’s “dire” financial situation. The Union
never demanded to bargain over the decision to sell these
routes, but it did request to bargain over the effects. (Tr. 305.)
The parties met for effects bargaining and later entered into an
agreement in which Respondent would provide severance or
modified bumping rights to the affected bargaining unit driv-
ers.9 (Tr. 307.) The Union never filed a grievance or an unfair
labor practice charge regarding the sale of these routes.
On November 18, 2012, Respondent unilaterally implement-
ed its last, best, and final offers to the Union, claiming the par-
ties had reached an impasse. The Union filed an unfair labor
practice charge regarding the implementation, and a hearing
was held before Administrative Law Judge Geoffrey Carter on
April 15–17, 2013.
On April 24, 2013, prior to a contract negotiation session,
Respondent informed the Union that it intended to sell five
company sales routes in Greenville, Ohio, to independent dis-
tributor Earl Gaudio & Son, Inc., effective June 2013. The
Union again did not request to bargain over the decision, but it
did request to bargain over the effects. (Tr. 316–318.) The
parties later met and the Union sought a similar arrangement to
the one the parties reached when Respondent sold its routes in
Columbus, Sabina, and Cincinnati. Respondent, however, was
unwilling to provide severance or bumping rights to four of the
five affected employees because the drivers were, in Respond-
ent’s opinion, low performers. But Respondent did agree to
pay severance to the fifth affected driver. The Union never
filed a grievance or an unfair labor practice charge regarding
the sale of these Greenville, Ohio routes. (Tr. 320–321.)
About a month later, Gaudio’s parent company filed for
bankruptcy. Per the terms independent distributor agreement,
the Greenville routes reverted back to Respondent immediate-
ly.10 In July 2013, Respondent resold these Greenville routes to
independent distributor Helm Distributing Company. Re-
spondent did not provide the Union with notice that the routes

9 Art. VIII-B, Sec. 5 of the collective-bargaining agreement allowed
for employees to bump into other routes within their service location.
However, in this case, Respondent had sold all of the routes within the
employees’ service location, so there were no other routes that they
could bump into. As a result, the parties agreed that the affected drivers
could bump into routes in other service locations. (Tr. 307.)
10 There is no evidence introduced regarding who serviced these
routes between when they reverted back to Respondent and when they
were sold to Helm Distributing. (Tr. 703.)
had reverted back, or that they had been resold to Helms Dis-
tributing Company. (Tr. 327–331.)
On June 18, 2013, Administrative Law Judge Geoffrey
Carter issued his decision finding that Respondent violated
Section 8(a)(5) and (1) of the Act when it unilaterally imple-
mented its November 18, 2012 offers to the Union without first
bargaining to a good-faith impasse. Administrative Law Judge
Carter found the parties were not at impasse at the time of the
implementation through March 2013, in part, because the par-
ties continued to meet and the Union continued to make concil-
iatory offers toward an agreement. See Mike-Sell’s Potato
Chip Co., JD–40–13.11
On July 17, 2013, Respondent provided the Union with writ-
ten notification that it was selling its (four) Springfield routes to
an independent distributor (Helm Distributing Company), ef-
fective August 17, 2013. (R. Exh. 8.) (Tr. 338–340.) The Un-
ion again did not make a demand to bargain over the decision
to sell the routes, but it did request to bargain over the effects.
Respondent and the Union did meet, and the parties ultimately
agreed to provide severance or bumping rights to the affected
bargaining unit drivers. (Tr. 345.) The Union did not file a
grievance or an unfair labor practice charge over the sale of the
Springfield routes. (Tr. 346.)
At some point in 2014, Buckeye Distributing Company filed for
bankruptcy liquidation, and all 29 sales routes it had acquired in Co-
lumbus, Sabina, and Cincinnati, Ohio reverted back to Respondent, per
the terms of the independent distributor agreement. (Tr. 358.) Prior to
Buckeye filing for bankruptcy, Kazer testified that he was in discus-
sions with Snyder Lance, the second largest snack food manufacturer
and distributor in the country, about acquiring the routes at issue “be-
cause of the job that Buckeye was doing.” (Tr. 358–359.) Kazer did
not provide any more information as to what he meant by that state-
ment. Respondent eventually transferred the 29 routes to Snyder Lance
after Buckeye Distributing Company filed for bankruptcy.12 There is
no evidence Respondent notified the Union that these routes had revert-
ed back, or that they were later transferred to Snyder Lance.
In November or December 2015, Helms Distributing Com-
pany also filed for bankruptcy, and the Greenville and Spring-
field routes Helm Distributing Company had acquired reverted

11 On June 13, 2013, Respondent unilaterally implemented a revised
final offer. (R. Exh. 3). There has been no finding, one way or another,
whether the parties had reached a good-faith impasse as of the time
Respondent implemented its revised final offer in June 2013. The par-
ties agree that the issue of impasse will be addressed in the compliance
proceeding related to Respondent’s unlawful unilateral implementation
of its November 18, 2012 final offer, and, therefore, it was not an issue
litigated in this proceeding.
On January 15, 2014, the Board affirmed Administrative Law Judge
Carter’s decision. See Mike-Sell’s Potato Chip Co., 360 NLRB 131
(2014). Respondent appealed the Board’s decision to the D.C. Circuit
Court of Appeals, and the Board cross-petitioned for enforcement. On
December 11, 2015, the Court of Appeals enforced the Board’s order.
Mike-Sell’s Potato Chip Co. v. NLRB, 807 F.3d 318 (D.C. Cir. 2015).
This enforced Board order is the subject of the previously mentioned
compliance proceeding.
12 The former Buckeye Distributing Company employees continued
to service the routes between when they revered back to Respondent
and when they were sold to Snyder Lance. (Tr. 701.) There is no other
evidence in the record regarding the terms or conditions associated with
having these individuals continue to service the routes during this peri-
od of time.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
back to Respondent. On December 15, 2015, Respondent re-
sold those routes to an independent distributor, Big TMT En-
terprize, LLC.13 Respondent did not provide the Union with
notification that the routes had reverted back, or that they were
resold to Big TMT Enterprize.14
The parties met for bargaining over a successor agreement
from October 2012 through June 2014. Thereafter, the parties
met to discuss a global settlement. Those discussions contin-
ued through 2016. From October 2012 through June 2014, the
parties met approximately 14 times. In those negotiations, the
parties made proposals regarding the language in article VIII-B,
section 5, addressing bidding. Respondent sought to modify
the language to: “In the event that it becomes necessary to ter-
minate or sell a route or combine one with another, the dis-
placed employee or employees who lose their routes due to this
combination or elimination may use their seniority to bump any
less senior employee within their currently assigned location.”
(R. Exh. 3, p. 9.) The Union sought to maintain the existing
language. Respondent eventually agreed to maintain the exist-
ing language because the Union stated no change was needed.
(Tr. 273–275.) In November 2016, as part of the global settle-
ment discussions, the Union proposed inserting into the man-
agement-rights clause the following language: “Notwithstand-
ing anything contained in this Agreement to the contrary, the
Company shall not sell, transfer, or otherwise assign any cur-
rent routes, in one transaction or series of transactions, to any
other person or entity without the agreement of the Union.” (R.
Exh. 4.)
D. Alleged Unfair Labor Practices
1. April 27, 2016 notification about possible sales and
resulting grievance
On April 27, 2016, Respondent sent the Union a letter stating
that in accordance with Respondent’s “rights” as recognized by
Arbitrator Paolucci in his decision in the Watson matter, Re-
spondent was seriously considering the elimination of three
Dayton, Ohio sales routes by selling them to independent dis-
tributors. (Jt. Exh. 3.) The letter stated that, although the spe-
cific routes ultimately eliminated will depend on the terms ne-
gotiated with the independent distributor(s), it is possible that
any of the current routes may be affected, and that a final deci-
sion would be made within 3–6 months. Respondent noted that
if it ultimately decided to sell one or more of these routes to
independent distributors, it would provide the Union with time-

13 The former Helm Distributing Company employees continued to
service the routes between when they revered back to Respondent and
when they were sold to Big TMT Enterprize, LLC. (Tr. 700.) There is
no other evidence in the record regarding the terms or conditions asso-
ciated with having these individuals continue to service the routes
during this period of time.
14 Respondent contends that the Union, through its steward Richard
Vance, should have been aware that these routes were resold because
Big TMT Enterprize temporarily worked out of Respondent’s Dayton
distribution center where Vance and other bargaining unit employees
worked, and Vance and the others likely would have seen Big TMT
Enterprize employees loading their trucks. (Tr. 356–357.) I find, how-
ever, Respondent failed to present sufficient evidence to establish the
Union had actual or constructive notice.
ly notice of its decision, bargain over the effects of the route
elimination(s), and that affected drivers would have seniority-
based bumping rights. That same date, Respondent sent all
employees a letter informing them of its plan to sell Dayton
sales routes to independent distributors, and if employees were
interested in becoming a distributor, they should contact the
Company. (Jt. Exh. 2.) On May 6, 2016, the Union, through
Steward Richard Vance, filed a grievance over Respondent’s
announced intent to sell these three routes. (Jt. Exh. 4.) The
grievance went through the various steps, and Respondent de-
nied violating any provisions of the parties’ expired agreement.
The parties had a third-step grievance meeting in June 2016.
At this meeting, the Union expressed frustration that Respond-
ent sent a letter to employees soliciting them to become distrib-
utors. (Tr. 374.) The Union also requested that Respondent not
select the more senior routes to sell. Respondent informed the
Union that all routes were under consideration. (Tr. 375.)
Respondent stated that it had the prerogative to sell the routes
under the Paolucci decision. (Tr. 151–152.) The Union did not
demand to bargain over the sale of the routes because no routes
had been selected at that time. (Tr. 375.)
2. Notification regarding the sale of Route 102
On July 11, 2016, Respondent sent the Union a letter stating
that, in accordance with its “rights” as recognized by Arbitrator
Paolucci in his decision in the Watson matter, Respondent will
be selling Route 102, Xenia territory, effective July 24, 2016.
(Jt. Exh. 5.) The unit driver assigned to the route had an-
nounced his retirement. The Union did not file a new grievance
after receiving this notification. Vance testified he believed
that his May 6, 2016 grievance covered this particular sale.
The Union never demanded to bargain over this sale or its ef-
fects. The route was eventually sold to Big TMT Enterprize,
LLC. (Tr. 375.)
3. Notification regarding the sales of Routes 104
and 122
On August 29, 2016, Respondent sent the Union a letter stat-
ing that in accordance with its “rights” as recognized by Arbi-
trator Paolucci in his decision in the Watson matter, Respond-
ent will be eliminating two positions through the sale of Route
104 and Route 122, effective September 4, 2016. (Jt. Exh. 6.)
Respondent noted that the affected drivers (Gerald Shimmer
#122 and Jerry Lake #104) would have an opportunity to rebid
on September 1, 2016. On September 29, 2016, the Union,
through Steward Richard Vance, filed a grievance regarding the
sale of these two routes. The parties met on this grievance at
the various steps, and Respondent again denied committing any
violations of the parties expired agreement.
On around August 30, 2016, Gerald Shimmer, one of the af-
fected drivers, informed Vance that he was told that his deliv-
ery vehicle was being sold, and that he (Shimmer) needed to
unload his truck and use a spare vehicle for the last few days of
his route. (Tr. 114–115.)
The two routes were eventually sold to BLM Distributing,
LLC. (Tr. 382.) The owner of BLM Distributing is Lisa
Krupp. Krupp is a former unit driver that provided relief cov-
erage when the other unit drivers were on vacation or leave.
MIKE-SELL’S POTATO CHIP CO. 7
4. Union’s demand to bargain and information request
In addition to the grievance, on August 31, 2016, the Union,
through Business Representative Alan Weeks, sent Respondent
a letter disputing Respondent’s claim that the Paolucci arbitra-
tion decision gave it the right to sell Routes 104 and 122. (Jt.
Exh. 8.) Specifically, the Union argued that Arbitrator Paolucci
found no obligation to bargain because of the demonstrated
unprofitability of the Watson route, the fact that the Watson
route was far away from the Columbus, Ohio distribution cen-
ter increasing the cost of providing product to the route, and the
fact that similar unprofitable routes have been sold in the past.
In contrast, the Union argued that no information has been pro-
vided to the Union showing that Routes 104 and 122 were un-
profitable; the two routes at issue are within the Dayton, Ohio
area and providing product did not cost more than providing
product to any other route out of the Dayton distribution center;
and Respondent has not previously sold a route within the Day-
ton service area. Based on these factors, the Union demanded
Respondent meet and bargain over the decision to sell Routes
104 and 122. In order to be prepared for such bargaining, the
Union requested the following information:
1. All documents that demonstrate the profitability of all of
the Company’s routes for the period from September 1, 2014
through August 1, 2016 so comparison can be made as to the
profitability of all the routes on Route No. 104 and Route No.
122.
2. A copy of the agreement between Mike-Sell’s and the enti-
ty to whom Route No. 104 and Route No. 122 is scheduled to
be sold.
3. A description of how Mike-Sell’s product is to be received
by the entity to whom [R]oute No. 104 and Route No. 122 is
scheduled to be sold.
4. A copy of all correspondence, including electronic corre-
spondence, between Mike-Sell’s and the entity to whom
Route No. 104 and Route No. 122 is scheduled to be sold
from the date of the first such correspondence until August
29, 2016.
The Union concluded the letter by requesting that Respondent
delay the sale of the two routes until the Union had an oppor-
tunity to review the requested information and the parties met
for bargaining. (Jt. Exh. 8.)
On September 12, 2016, Respondent sent a reply to the Un-
ion’s August 31, 2016 letter. (Jt. Exh. 9.) In its reply letter,
Respondent disagreed with the Union’s interpretation of the
Paolucci arbitration decision, arguing that the Union was read-
ing the decision too narrowly, particularly that it only applied to
the sale of unprofitable routes. Respondent noted that the arbi-
trator “specifically rejected the Union’s argument ‘that the
Company did this simply because the costs were too high,’
finding instead that ‘[w]here an entire business unit is trans-
ferred, the factors justifying the change are much more numer-
ous than a simple measure of cost savings.’” In short, Respond-
ent argued that the arbitrator “recognized that [t]he Company
has chosen a different manner of operating its business, and
[a]bsent clear contract language, it must be found that the man-
agement right to control distribution, and determine profitabil-
ity, allows the [Company to sell its routes to independent dis-
tributors without bargaining with the Union.]” (internal quota-
tions omitted). Respondent went on to say that it exercised its
“inherent management right” to determine methods of distribu-
tion by selling Routes 104 and 122, just as it did by selling
Route 102 in July 2016. The last paragraph of Respondent’s
letter states:
Because Arbitrator Paolucci’s award makes it clear that Mike-
Sells has the management right to change distribution meth-
ods in accordance with strategic objectives, we respectfully
decline to bargain over our decision to sell Company routes;
to delay the sale of Routes 104 and 102 pending such deci-
sional bargaining; or to respond to information request desig-
nated specifically for the purpose of engaging in such deci-
sional bargaining.
In a footnote, Respondent stated it remained willing to bar-
gain over the effects of the route eliminations, if any, and re-
mained willing to provide relevant information for that purpose.
But because the arbitration award confirmed that Respondent
had the managerial discretion to unilaterally sell company
routes, it is not a mandatory subject of bargaining; therefore,
Respondent did not believe that the Union’s August 31 infor-
mation request (which was made for the purpose of decisional
bargaining) was presumptively relevant or necessary for the
Union to perform its statutory duties. Respondent did not pro-
vide the Union with the information it requested. (Tr. 475.)
5. Notification of sale of Route 131 and resulting grievance
Also, on September 12, 2016, Respondent sent the Union a
separate letter stating that in accordance with its “rights” as
recognized by Arbitrator Paolucci in his decision in the Watson
matter, Respondent will be selling Route 131, effective Sep-
tember 17, 2016. (Jt. Exh. 10.) On that same date, the Union,
through Steward Richard Vance, filed a grievance regarding the
sale of Route 131. The route was eventually sold to Big TMT
Enterprize, LLC. The parties later met on these and other
grievances in January 2017, and Respondent denied any viola-
tions of the parties’ expired collective-bargaining agreement.15
6. Sale of delivery vehicles to independent distributors
On September 4, 2016, Respondent sold a delivery truck to
independent distributor Lisa Krupp’s company BLM Distrib-
uting LLC. On September 11, 2016, Respondent sold a deliv-
ery truck to independent distributor Charles Morris’s company
Big TMT Enterprize, LLC. (Tr. 222.) There was no grievance
filed regarding the sale of the vehicles.
7. Costs and revenue associated with sales
At the hearing, Kazer estimated that Respondent recognized
approximately $229,000 in total savings in labor costs from
selling the routes (i.e., $152,000 in commissions, $35,000 in
pension contributions, $14,000 in vacation pay, holiday pay and
sick day pay, $13,000 in employment taxes, $7000 in

15 Respondent participates in the Union’s Central States Pension
Fund. As a participant in this Fund, Respondent is subject to a with-
drawal liability of $20 million if the number of contribution based units
(CBUs) drops below a certain amount. Kazer testified that Respondent
has not sold more routes out of concern that further sales would trigger
the withdrawal liability. (Tr. 579.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
healthcare costs, $6000 in workers’ compensation payments,
and $1100 in supplemental life insurance payments). He esti-
mated approximately $195,000 worth of nonlabor savings,
including the elimination two nonunion positions; the costs
associated with maintaining and insuring the four vehicles that
were sold; costs of stale products; etc. Kazer also identified
several intangible cost savings. He also identified Respondent
received $74,000 from selling the routes and $34,000 from
selling the trucks to the independent distributors, and $18,000
in inventory liquidation. However, Kazer noted that the sale of
the four routes meant paying the independent distributors
$324,000 in distributor margins. (Tr. 538–542.)
IV. CONTENTIONS OF THE PARTIES
The General Counsel contends that Respondent’s decisions
to sell the four company routes at issue to independent distribu-
tors amounts to subcontracting of bargaining unit work, which
is a mandatory subject of bargaining, and Respondent’s failure
or refusal to bargain with the Union over those decisions vio-
lated Section 8(a)(5) and (1) of the Act. The General Counsel
also contends that the information the Union requested from
Respondent on August 31, 2016, was relevant and necessary for
the Union’s role as collective-bargaining representative, and
that Respondent’s failure or refusal to provide that requested
information violated Section 8(a)(5) and (1) of the Act.
Respondent denies the alleged violations. Respondent con-
tends selling the company sales routes was not a mandatory
subject of bargaining because it was part of Respondent’s deci-
sion to fundamentally change its business model by discontinu-
ing these discrete business units. Moreover, even if the sales
were a mandatory subject of bargaining, Respondent contends
that the Union waived its right to bargain. And because there
was obligation to bargain over the sales, Respondent argues it
had no obligation to provide the Union with the requested in-
formation.
V. LEGAL ANALYSIS
A. Decisions to Sell the Routes Were Mandatory Subjects
of Bargaining
Section 8(d) of the Act imposes an obligation on an employ-
er to bargain with respect to wages, hours, and other terms and
conditions of employment. Section 8(a)(5) makes it an unfair
labor practice for an employer to make unilateral changes to
these mandatory subjects without first providing the union with
notice and an opportunity to bargain. NLRB v. Katz, 369 U.S.
736, 743 (1962). The issue, therefore, is whether Respondent’s
decision to sell the four company routes at issue amounted to a
mandatory subject of bargaining.
In Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,
215 (1964), the Supreme Court found that an employer’s sub-
contracting of maintenance work to a third party was a manda-
tory subject of bargaining, holding that:
The Company's decision to contract out the maintenance
work did not alter the Company's basic operation. The
maintenance work still had to be performed in the plant. No
capital investment was contemplated; the Company merely
replaced existing employees with those of an independent
contractor to do the same work under similar conditions of
employment. Therefore, to require the employer to bargain
about the matter would not significantly abridge his freedom
to manage the business.
379 U.S. at 213–214.
In First National Maintenance Corp. v, NLRB, 452 U.S. 666
(1981), the Supreme Court held that not all decisions that result
in the displacement of employees require bargaining. In that
case, the employer provided maintenance and housekeeping
services for commercial establishments, including a nursing
home. Under the service contract, the home reimbursed the
employer for its labor costs and paid a fixed management fee.
The employer terminated its contract with the home over a
dispute about the management fee, which led it to discharge its
employees working there without bargaining with the union. In
deciding the matter, the Court divided management decisions
into three categories for bargaining purposes. First, “[s]ome
management decisions, such as choice of advertising and pro-
motion, product type and design, and financing arrangements,
have only an indirect and attenuated impact on the employment
relationship” and are thus not mandatory subjects of bargaining.
Second, “[o]ther management decisions, such as the order of
succession of layoffs and recalls, production quotas, and work
rules, are almost exclusively ‘an aspect of the relationship’
between employer and employee” and are thus mandatory sub-
jects. 452 U.S. at 677. Third, a decision that had a direct im-
pact on employment because it involves the elimination of jobs,
but which had as its focus only the economic profitability of the
contract, a matter wholly apart from the employment relation-
ship. The Court stated that the employer’s decision to terminate
its contract with the home involved a change in the scope and
direction of the enterprise and was akin to a decision whether to
be in business at all, “not in [itself] primarily about conditions
of employment.” 452 U.S. at 677, quoting from Fibreboard,
379 U.S. 203, at 223 (1964) (Stewart, J. concurring). In deter-
mining whether there is a bargaining obligation in this third
category, the Court set forth the following test:
[I]n view of an employer's need for unencumbered decision
making, bargaining over management's decisions that have a
substantial impact on the continued availability of employ-
ment should be required only if the benefit, for labor-
management relations and the collective-bargaining process,
outweighs the burden placed on the conduct of the business.
First National Maintenance, 452 U.S. at 678–679.
The Court noted that the employer had no intention of re-
placing the discharged employees or to moving the operation
elsewhere, that the sole purpose for the closing was to reduce
economic loss, and that the employer’s decision was based on a
factor over which the union had no control or authority. As
such, the employer’s only obligation was to bargain over the
effects of the decision. The Court, however, was careful to
clarify that its holding was limited to the particular situation
presented and was not intended to cover other types of man-
agement decisions, such as “plant relocations, sales, other kinds
of subcontracting, automation, etc., which are to be considered
on their particular facts.” Id. at 686 fn. 22.
In Bob's Big Boy Family Restaurants, 264 NLRB 1369, 1370
(1982), the dispute was over whether a change should be char-
MIKE-SELL’S POTATO CHIP CO. 9
acterized as a mandatory subcontracting decision under Fibre-
board, or as a nonmandatory partial closing under First Na-
tional Maintenance. In that case, the employer operated a
commissary where it prepared and distributed food products to
a restaurant chain. Without bargaining with the union, the em-
ployer decided to discontinue its shrimp processing operation
and subcontract that work to a third party, which resulted in the
termination of 12 employees. The Board, in a 3–2 decision,
held:
The distinction between subcontracting and partial closing,
however, is not always readily apparent. Thus, it is incumbent
on the Board to review the particular facts presented in each
case to determine whether the employer's action involves an
aspect of the employer/employee relationship that is amenable
to resolution through bargaining with the union since it in-
volves issues “particularly suitable for resolution within the
collective bargaining framework.” If so, Respondent will be
required to bargain over its decision. If, however, the employ-
er action is one that is not suitable for resolution through col-
lective bargaining because it represents “a significant change
in operations,” or a decision lying at “the very core of entre-
preneurial control,” the decision will not fall within the scope
of the employer's mandatory bargaining obligation. A deter-
mination of the suitability to collective bargaining, of course,
requires a case-by-case analysis of such factors as the nature
of the employer's business before and after the action taken,
the extent of capital expenditures, the bases for the action,
and, in general, the ability of the union to engage in meaning-
ful bargaining in view of the employer's situation and objec-
tives.
Id. at 1370 (internal citations omitted).
The Board concluded the employer subcontracted the work
of shrimp processing, rather than partially closed its food prep-
aration business, because there was no major shift in the direc-
tion of employer’s business. The Board found that, both before
and after the subcontract, the employer engaged in the business
of providing prepared foodstuffs to its various stores, and it
appeared to continue supplying processed shrimp to its constit-
uent restaurants. The only difference is that the processing
work was performed by the third-party’s employees pursuant to
the subcontract rather than by employer’s employees. Accord-
ingly, the Board held that the nature and direction of the em-
ployer’s business was not substantially altered by the subcon-
tract.
The Board also observed that the closure did not constitute a
major capital modification. Although the corporation did sell
$30,000 worth of equipment to the third party, this was not so
substantial a change as to remove the decision from mandatory
bargaining. Finally, the Board held that since escalating costs
and proper size grading of the shrimp were the primary reasons
for the employer’s decision to subcontract, the employer’s con-
cerns were of the type traditionally suitable for the collective
bargaining process. Thus, the Board found its decision was
consistent with First National Maintenance as well as Fibre-
board.
In Dubuque Packing Co., 303 NLRB 386, 391 (1991), enfd.
in relevant part 1 F.3d 24, 31–33 (D.C. Cir. 1993), the Board
set forth the test it would use to apply the Court’s First Nation-
al Maintenance decision for determining whether a work relo-
cation decision is a mandatory subject of bargaining. Under this
test, the General Counsel has the initial burden of showing that
the decision was “unaccompanied by a basic change in the
nature of the employer’s operation.” The employer then has the
burden of rebutting the General Counsel’s prima facie case or
proving certain affirmative defenses. Where the Board con-
cludes that the employer’s decision concerned the “scope and
direction of the enterprise,” there will be no duty to bargain
over the decision. The Employer may also avoid bargaining if it
can show that (1) labor costs were not a factor or (2) even if
labor costs were a factor, the union, could not have offered
sufficient labor cost concessions to alter its work relocation
decision. Id. at 391. Although Dubuque concerned work relo-
cation decisions, the test is applicable to decisions that have a
direct impact on employment, but, have as their focus the eco-
nomic profitability of the employing enterprise.
In Torrington Industries, 307 NLRB 809 (1992), the em-
ployer unilaterally replaced two union truck drivers with non-
bargaining unit drivers and independent contractors, but
claimed that its decision was entrepreneurial and did not turn
on labor costs. The Board concluded that the Dubuque Packing
test did not apply because the employer’s reasons had nothing
to do with a change in the scope and direction of its business.
Instead, the Board concluded that the case involved subcon-
tracting decisions similar to those in Fibreboard, and, therefore,
were mandatory subjects of bargaining, even though the deci-
sion was not motivated by labor costs.
In O.G.S. Technologies, Inc., 356 NLRB 642, 645 (2011), a
successor employer unilaterally subcontracted die-cutting work,
resulting in the replacement of its own die engineers by outside
firms. The Board applied Torrington and concluded the em-
ployer’s termination of a portion of its operation constituted
subcontracting that required decisional and effects bargaining,
holding:
In contrast to First National Maintenance, OGS made certain
operational changes, but they did not amount to a ‘partial
closing’ or other ‘change in the scope and direction of the en-
terprise,’ which remained devoted to the manufacture and sale
of brass buttons to the same range of customers. Before and
after the decision to subcontract die cutting, OGS produced
and supplied brass buttons to customers. . . . The decision at
issue simply resulted in a marginal increase in the percentage
of cutting work the [r]espondent subcontracted and a modest
change in the functions performed in-house, but not the aban-
donment of a line of business or even the contraction of the
existing business.
Id.
In Mi Pueblo Foods, 360 NLRB 1097 (2014), the employer
operated a chain of grocery stores and a distribution center. The
distribution center employees would load food shipments and
grocery items onto trucks, and then unit drivers would deliver
them to the employer’s stores. The employer used a third-party
trucking company to deliver products from certain suppliers to
the distribution center, where the products would be unloaded
and reloaded onto the employer’s trucks for the unit drivers to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
deliver to the stores. Later, in an effort to increase productivity
and efficiency, the employer began having the third-party
trucking company deliver the supplies directly to certain stores,
bypassing the distribution center and the unit drivers. The union
representing the drivers filed a charge alleging the employer
had an obligation to bargain over the subcontracting of this
work. The Board held that the employer had an obligation to
bargain over the decision and the effects of changing from a
hub-and-spoke delivery model to a point-to-point model even
though that change “did not result in layoffs or significantly
affect wages and hours.” The Board held that whenever bar-
gaining unit work is assigned to outside contractors, the unit is
adversely affected, and there is an obligation to bargain, be-
cause absent an obligation to bargain, an employer “could con-
tinue freely to subcontract work and not only potentially reduce
the bargaining unit but also dilute the [u]nion’s bargaining
strength.” 360 NLRB at 1099.
In light of the foregoing, the core question is whether the
scope and direction of Respondent’s business was substantially
altered when it sold the four company sales routes at issue to
the independent distributors. I find it was not. Respondent has
been, and continues to be, a manufacturer and distributor of
snack foods. It has two distribution methods: direct store deliv-
ery and warehouse or direct sales. The direct store delivery
method is effectuated by the use of company route sales drivers
and independent distributors. Although the percentage of
routes covered route sales drivers versus independent distribu-
tors has changed over the years, Respondent continues to use
both to distribute its products to its customers. As for the four
routes at issue, Respondent continues to distribute products to
those customers. The only difference is that independent dis-
tributors are delivering the products on those routes rather than
the company route sales drivers.
Under Fibreboard, the issue is whether the employer is re-
placing existing employees with those of an independent con-
tractor to do the same work under similar conditions. In this
case, that is what Respondent has done. Respondent contends
that, unlike company route sales drivers, independent distribu-
tors make significant investment in purchasing their territory,
acquiring, maintaining, and insuring storage space, vehicles,
equipment, and purchasing product; and these independent
distributors assume sizable risk that they will be able to sell the
products they buy and have a profitable business. However, at
its core, both groups are responsible for delivering Respond-
ent’s products to its customers. Both groups acquire or are
assigned a route or territory. Both of the groups review orders,
load the products onto their vehicles, travel to customer loca-
tions, stock customer shelves, rotate unsold product, perform
point-of-sale marketing, and removing expired product. Both
use handheld electronic devices to track orders, deliveries, and
sales. And both are primarily paid based on what they sell.16
There clearly are differences between the two, but Fibreboard
refers to similar conditions, not identical ones. And despite the
differences, I find that the independent distributors perform the

16 Under the parties’ agreement, route sales drivers are paid a flat
rate for route riding and pull up (stocking) work. Otherwise, they are
paid a commission. (Jt. Exh. 1, pg. 7.)
same core work under similar conditions as the route sales
drivers. As a result, based on established precedent, I find the
sales of these four company routes in 2016 are akin to subcon-
tracting, and, therefore, are mandatory subjects of bargaining.
Respondent contends it has no obligation to bargain because
while labor costs were a factor in deciding to sell the routes, it
actually costs Respondent more to use independent distributors
because their margins. But because I conclude that there was
no actual change in Respondent’s operations, and labor costs
played a role in Respondent’s decision to sell the routes, Re-
spondent had an obligation to bargain over the decision to sell
the four routes at issue.
Respondent cites to West Virginia Baking Co., 299 NLRB
306 (1990), enfd. 946 F.2d 1563 (D.C. Cir. 1991), for support
that it did not have an obligation to bargain over its decision to
sell the company routes. In that case, the administrative law
judge dismissed the complaint, including the allegations the
employer violated Section 8(a)(5) and (1) of the Act when it
unilaterally converted all its bargaining unit driver-salesmen to
independent distributors after bargaining to an impasse with the
union. The judge found that the decision to convert all the unit
drivers to independent distributors was not a mandatory subject
of bargaining. On appeal, the Board held:
We agree with the judge’s conclusion that the Respondent did
not refuse to bargain in good faith over the decision to convert
its driver-salesmen to independent distributors and the effects
of that decision and, in fact, did bargain in good faith over the
decision and its effects until impasse and lawful implementa-
tion of the distributorship program. Accordingly, we find it
unnecessary to pass on whether the Respondent’s decision to
convert its driver-salesmen to independent distributors is a
mandatory or permissive subject of bargaining.
299 NLRB at 306 fn. 3 (italics added).
I find this case to be inapposite. To begin with, the employer
sought to completely eliminate all of its driver-salesmen and
convert them to independent distributors. It then met and bar-
gained with the union over its decision and its effects. After the
parties reached an impasse, the employer implemented the
change. As stated above, the Board chose not to address
whether the employer’s conversion decision was a mandatory
subject of bargaining.
Respondent also cites to NLRB v. Adams Dairy, 350 F.2d
108 (8th Cir. 1965), cert. denied 382 U.S. 1011 (1965), for
support. In that case, the court of appeals denied enforcement
of the Board’s decision in Adams Dairy, 137 NLRB 815
(1962), in which the administrative law judge and the Board
concluded that the employer violated Section 8(a)(5) and (1) of
the Act when it had independent distributors take over the driv-
er-salesmen routes, without giving the Union prior notice or an
opportunity to bargain. I am bound by Board law and cannot
rely upon the reasoning of the court of appeals for not enforcing
the Board’s order. Even were that not true, I find the case to be
inapposite because the employer completely eliminated all
driver-salesmen routes and sold all of its trucks. In the present
case, Respondent continues to employ company route sales
drivers and possess trucks, and, based on Kazer’s testimony, it
likely will continue to employ route sales drivers out of concern
MIKE-SELL’S POTATO CHIP CO. 11
that to do otherwise would trigger significant pension with-
drawal liability. (Tr. 581–582.)
B. The Union Did Not Waive its Right to Bargain Over the
Decision to Sell Routes 102 or 131 by Failing to
Request Bargaining
An employer violates Section 8(a)(5) when it unilaterally in-
stitutes changes in mandatory terms of employment without
bargaining in good faith. NLRB v. Katz, 369 U.S. at 743. In
general, good-faith bargaining requires timely notice and a
meaningful opportunity to bargain regarding a proposed
change. See Wackenhut Corp., 345 NLRB 850, 868 (2005);
Brimar Corp., 334 NLRB 1035, 1035 (2010). Once notice is
received, the union must act with “due diligence” to request
bargaining, or risk a finding that it has waived its bargaining
right. See KGTV, 355 NLRB 1283 (2010). A union may be
excused from requesting to bargain if the employer’s notice
provides too little time for negotiation before implementation,
or if the employer otherwise has made it clear that it has no
intention of bargaining about the issue. In these circumstances,
a bargaining request would be futile, because the employer’s
notice informs the union of nothing more than a fait accompli.
In order to determine whether the employer has presented the
union with a fait accompli, the Board considers objective evi-
dence regarding the presentation of the proposed change and
the employer’s decisionmaking process. Id. (union’s “subjec-
tive impression of its bargaining partner’s intention is insuffi-
cient” to establish fait accompli). While presenting a proposed
change as a fully formulated plan or the use of positive lan-
guage does not definitively establish a fait accompli, statements
conveying an irrevocable decision constitute significant evi-
dence that bargaining would be futile. UAW-DaimlerChrysler
National Training Center, 341 NLRB 431, 433 (2004) (em-
ployer presented fait accompli by telling union that layoff was a
““done deal”); Pontiac Osteopathic Hospital, 336 NLRB at
1023–1024 (notice stating that changes “will be implemented”
and other “unequivocal language” evidence of fait accompli).
The Board also evaluates the timing of the employer’s state-
ments vis-a-vis the actual implementation of the change, the
manner in which the change is presented, and other evidence
pertinent to the existence of a “fixed intent” to make the change
at issue which obviates the possibility of meaningful bargain-
ing. Ciba-Geigy Pharmaceutical Division, 264 NLRB 1013,
1017 (1982), enfd. 722 F.2d 1120 (3d Cir. 1983), Northwest
Airport Inn, 359 NLRB 690, 693 (2013) (fait accompli estab-
lished given owner’s testimony that a decision to subcontract
bargaining unit work had already been made and implemented,
and union bargaining proposals regarding employee compensa-
tion “made no difference”).
As previously stated, on April 27, 2016, Respondent sent the
Union a letter stating that, in accordance with Respondent’s
rights as recognized by Arbitrator Paolucci in his decision in
the Watson matter, Respondent was seriously considering the
elimination of three Dayton, Ohio sales routes by selling them
to independent distributors. The letter stated that a final deci-
sion would be made within 3–6 months. Respondent noted that
if it ultimately decided to sell one or more of these routes to
independent distributors, it would provide the Union with time-
ly notice of its decision, bargain over the effects of the route
elimination(s), and that affected drivers would have seniority-
based bumping rights. At the June 2016 third-step grievance
meeting over the Union’s May 2016 grievance, Respondent
informed the Union that it had the right to make the sales under
the Paolucci decision. On July 11, 2016, Respondent sent the
Union a letter stating that it will be selling Route 102, Xenia
territory, effective July 24, 2016. There is no dispute the Union
took no action after it received Respondent’s July 11 letter
notifying it of the sale of Route 102. Respondent contends that
the Union’s failure to request bargaining over the sale of the
route amounts to a waiver of it right to bargain. The General
Counsel counters, arguing that the Union had no obligation to
request bargaining because Respondent announced the sale of
Route 102 as a fait accompli.
I find the combination of Respondent’s April 27 and on July
11 letters amounted to a notice of a fait accompli. Respond-
ent’s April 27 letter to the Union stated that in accordance with
its rights, it would make a “final decision” within 3–6 months,
and Respondent would notify the Union of that decision and
“bargain over the effects of the route elimination(s).” Sutter
Health Central Valley Region, 362 NLRB No. 199, slip op. at 3
(2015) (fait accompli when the announcement or notification is
presented as a “final decision”). As promised, on July 11, Re-
spondent notified the Union of its final decision to sell Route
102, which would be effective on July 24, 2016. The only rea-
sonable reading of these letters is that Respondent had no inten-
tion of bargaining with the Union regarding the decision to sell
these routes; only that it would be willing to bargain over the
effects. This conclusion is further supported by Respondent’s
September 12, 2016 response to the Union’s August 31, 2016
request to bargain over the decisions to sell Routes 104 and
122, when Respondent stated that, per the arbitration decision,
it had no obligation to bargain with the Union over the sale of
these routes. Consequently, under these circumstances, I find
that the Union’s failure to request bargaining over the sale of
Route 102 does not constitute a waiver of its right to bargain.
Similarly, I find the Union did not waive its right to bargain
over the sale of Route 131 by failing to make a request to bar-
gain after receiving notice of that decision to sell. Respondent
provided the Union with notice of that sale the same day it
provided its reasoning as to why it did not have an obligation to
bargain over the sale of Routes 104 and 122. Based on that
information, I find Respondent announced the sale of Route
131 as a fait accompli because it had a fixed intent and was not
willing to bargain over the decision.
C. The Union Did Not “Clearly and Unmistakably” Waive Its
Right to Bargain Over the 2016 Decision to Sell of the Four
Company Routes
Respondent contends that the Union has waived its right to
bargain over the sale of company routes. An employer may
escape liability for a unilateral change if it proves that a union
has expressed or implied a “clear and unmistakable waiver” of
its right to bargain. Metropolitan Edison Co. v. NLRB, 460 U.S.
693 (1983); Provena St. Joseph Medical Center, 350 NLRB
808, 810–812 (2007). A waiver occurs when a union knowingly
and voluntarily relinquishes its right to bargain about a term
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
and condition of employment and cedes full discretion to the
employer on such a matter. However, the Board narrowly con-
strues waivers and has been hesitant to imply waivers not ex-
plicitly mentioned in the parties' collective-bargaining agree-
ments. Mississippi Power Co., 332 NLRB 530 (2000), enfd. in
part 284 F.3d 605 (5th Cir. 2002) (rejecting employer’s waiver
argument that the unions incorporated the benefit plans' reser-
vation of rights clauses into the contract based on a “course of
conduct” of copies of the benefit plans provided to the unions
and incorporated into the collective-bargaining agreements). A
clear and unmistakable waiver can be gleaned from the parties’
past practice, bargaining history, prior action or inaction. Amer-
ican Diamond Tool, 306 NLRB 570 (1992). However, Board
precedent makes clear that a union's acquiescence in previous
unilateral changes does not operate as a waiver of its right to
bargain over such changes for all time. Owens-Brockway Plas-
tic Products, 311 NLRB 519, 526 (1993). The burden is on the
party asserting the waiver to establish the existence of the
waiver. Pertec Computer, 284 NLRB 810 fn. 2 (1987).
Respondent initially contends that it had no obligation to
bargain because it had an inherent right, separate from the ex-
pired agreement, to make these decisions to sell routes. I have
already addressed and rejected that argument. Respondent also
indirectly relies upon the language of the parties’ expired col-
lective-bargaining agreement, and the arbitration decision in the
Watson matter, as supporting its waiver argument.17 As previ-
ously stated, the parties’ agreement does not address the sub-
contracting of bargaining unit work. Arbitrator Paolucci
acknowledged this in his decision. He concluded that the sale
of the company route was permitted under the management-
rights clause, which allowed Respondent the discretion to con-
trol distribution methods. However, the Board consistently has
held that a waiver of bargaining rights under a management-
rights clause does not survive the expiration of a contract. Buck
Creek Coal, 310 NLRB 1240 (1993); Control Services, 303
NLRB 481 (1991), enfd. 975 F.2d 1551 (3d Cir. 1992), enfd.
961 F.2d 1568 (3d Cir. 1992); Kendall College of Art, 288
NLRB 1205, 1212 (1988).
Regardless, a waiver of a statutory bargaining right must be
“clear and unmistakable” and will not be inferred from general
contract language. Provena St. Joseph Medical Center, supra;
Control Services, supra. The contract language falls well short
of this standard. It makes no reference to the period beyond the
contract’s expiration, and fails to unequivocally and specifical-
ly express an intention to permit the Respondent to continue
implementing unilateral changes of this sort after contract expi-
ration. The American Red Cross, Great Lakes Blood Services
Region and Mid-Michigan Chapter, 364 NLRB No. 98, slip op.

17 At the hearing Respondent cited to its June 2013 revised final of-
fer and its modified language addressing bidding rights. Respondent
argued that, under either the prior language or revised language, the
Union waived its right to bargain over the sale of company routes.
However, in its communications with the Union announcing these
sales, Respondent never cited to or relied upon the modified bidding
language in its June 2013 revised final offer to support its unilateral
action. Respondent, instead, repeatedly relied solely upon Arbitrator
Paolucci’s decision—and the language that existed then--to support its
action.
at 4 (2016).
Respondent further argues that the Union waived its right to
bargain by the past practice that has developed as a result of the
Union’s failure to object to or demand bargaining over the sales
of company routes to independent distributors prior to 2016.
To establish a past practice of subcontracting justifying a re-
fusal to bargain, an employer must show that the previous sub-
contracting was similar in kind and degree and occurred with
such regularity and frequency that employees could reasonably
expect the practice to continue or recur on a regular and con-
sistent basis. A history of subcontracting on a random, intermit-
tent, or discretionary basis is insufficient. Hospital San Cristo-
bal, 358 NLRB 769, 772 (2012), reaffd. 363 NLRB No. 164
(2016); Ampersand Publishing, LLC, 358 NLRB 1415, 1416
(2012), reaffd. 362 NLRB No. 26 (2015); and Sociedad Espa-
nola de Auilio Mutuo y Beneficiencia de P.R., 342 NLRB 458,
468–469 (2004), enfd. 414 F.3d 158, 165–167 (1st Cir. 2005).
See also E. I. du Pont de Nemours, 364 NLRB No. 113 (2016).
In E. I. du Pont de Nemours, supra, the Board, upon remand
from the D.C. Circuit Court of Appeals, reexamined whether
the employer violated Section 8(a)(5) and (1) of the Act by
unilaterally changing the terms of the employees’ benefit plan
at its facilities post contract expiration at a time when the par-
ties were negotiating for successor agreements and were not at
impasse. The Board, pursuant to the Court’s remand instruc-
tions, returned to the rule it followed in its earlier decisions,
including Beverly Health & Rehabilitation Services, 335 NLRB
635 (2001), enfd. in relevant part 317 F.3d 316 (D.C. Cir.
2003), and Register-Guard, 339 NLRB 353 (2003), that discre-
tionary unilateral changes ostensibly made pursuant to a past
practice developed under an expired management-rights clause
are unlawful. The majority overruled precedent, including the
Board’s decisions in the Courier-Journal cases, 342 NLRB
1093 (2004), and 342 NLRB 1148 (2004), Capitol Ford, 343
NLRB 1058 (2004), and Beverly Health & Rehabilitation Ser-
vices, 346 NLRB 1319 (2006), to the extent that those Board
decisions conflicted with well-settled waiver principles, and
were inconsistent with the Act’s goal to encourage the practice
of collective bargaining.
Applying the status quo doctrine under NLRB v. Katz, supra,
the Board held that during negotiations for a successor agree-
ment, the employer has a statutory duty to maintain the status
quo by continuing in effect the employment terms and condi-
tions that existed at the expiration of the parties’ agreement. Id.
slip op. at 4. But because the essence of a management-rights
clause is the union's consensual surrender of its statutory right
to bargain during the term of the contract, that waiver, like any
waiver of a statutory right, does not survive contract expiration,
absent evidence of the parties' contrary intent. Thus, the status
quo doctrine under Katz does not privilege the employer to
continue making unilateral changes that, during the term of the
agreement, would have been authorized by the now-expired
management-rights clause. Id., slip op. at 5. And, because uni-
lateral changes implemented during the term of a contract under
the authority of a management-rights clause are based on a
union's bargaining waiver, the right granted to an employer to
make changes to employees’ terms of employment under that
clause does not create a past practice permitting an employer to
MIKE-SELL’S POTATO CHIP CO. 13
continue to unilaterally implement changes post contract expi-
ration. Id., slip op. at 5–6.
Having overruled the Courier-Journal decisions and Capitol
Ford, the majority found that the employer’s wide ranging and
varied changes to the benefits of unit employees, made with no
cognizable fixed criteria, did not establish a past practice that
the employer was permitted to continue when the applicable
collective-bargaining agreements had expired. Therefore, the
majority held that following the expiration of the parties’ col-
lective-bargaining agreements, the employer had the statutory
obligation to adhere to the terms and conditions of employment
that existed on the expiration date until it bargained to agree-
ment or reached a good-faith impasse in overall bargaining for
a new agreement.
Applying these principles to the instant case, I find that Re-
spondent cannot rely upon its prior, unilateral decisions to sell
company routes to independent distributors, both before and
after the expiration of the parties’ agreement, as establishing a
waiver of the Union’s right to request bargaining over the sale
of the four company routes at issue. As established in all the
letters Respondent sent to the Union announcing its intent to
sell the routes, as well as its response to the Union’s August
2016 demand to bargain, Respondent relied upon Arbitrator
Paolucci’s decision, which found Respondent had the right sell
company routes based on the language of the now expired
management-rights clause.18
Relying on Arbitrator Paolucci’s decision, Respondent ar-
gues that article VIII-B, section 5, which sets forth employees’
bidding rights when a route is eliminated or merged, supports
finding a waiver. Arbitrator Paolucci held the “elimination
provision must be given a broader interpretation and it must
apply where the lack of profitability could result in either the
complete withdrawal from a market, or the selling of a route
thus making the route eliminated from the Company’s control.”
To begin with, I am not bound by an arbitrator’s decision.
Spielberg Mfg. Co., 112 NLRB 1080, 1081 (1955). And, in this
case, I do not agree with the Arbitrator’s interpretation or rea-
soning. Article VIII-B, section 5 does not give Respondent the
right to unilaterally sell routes, and it does not constitute a clear
and unmistakable waiver of the Union’s right to bargain. The
provision addresses bidding rights in the event routes are elimi-

18 Respondent argues that Arbitrator Paolucci recognized that Re-
spondent had an “inherent management right” to sell company routes. I
reject that argument. The Arbitrator stated that “[a]bsent clear contract
language, it must be found that the management right to control distri-
bution, and determine profitability allows the action of the Company.”
The management-rights provision of the expired agreement states that
the “right to improve manufacturing methods, operations and condi-
tions and distribution of its products . . . is exclusively reserved to the
company.” I find that Arbitrator Paolucci was relying upon this lan-
guage as giving Respondent the right to sell the route in that case, and
he was not concluding that there was some extra-contractual right. See
generally Weavexx, LLC, 364 NLRB No. 141, slip op. 3 (2016); and
Ciba-Geigy Pharmaceuticals Division, 264 NLRB 1013, enfd. 722 F.2d
1120, 1126 (1983) (“The arbitrator’s conclusion that an extra-
contractual residual rights theory authorizes management to make
unilateral decisions on mandatory subjects of collective bargaining not
specifically covered in a collective bargaining agreement disregards
clear Board precedent.”).
nated or merged. However, when Respondent sells a route to
an independent distributor, it is not eliminated—it continues to
exist. It merely is being serviced by an independent distributor,
as opposed to a unit driver.
Moreover, Respondent argues these sales to independent dis-
tributors involve the transfer of a discrete business unit. But,
according to the independent distributor agreement, Respondent
is transferring a primary, not exclusive, right to distribute its
products within a defined territory, and the distributor has cer-
tain rights and obligations regarding servicing of that territory.
And, if the distributor is unable to service that route, it reverts
back to Respondent. This occurred on three separate occasions
following the expiration of the parties’ collective-bargaining
agreement, when the independent distributors went bankrupt.19
The result is there is no provision, other than the manage-
ment-rights clause, that arguably gives Respondent the authori-
ty to subcontract work by selling routes. Absent some other
contractual provision waiving the Union’s right to bargain over
the subcontracting of unit work through the sale of the route to
an independent distributor, the default, or the status quo, is the
statutory obligation to bargain over those decisions.
Respondent points to the numerous routes it sold prior to and
after the expiration of the collective-bargaining agreement to
support its waiver argument. However, as stated above, the
Board has held that prior changes, made with no cognizable
fixed criteria, do not establish a past practice that the employer
was permitted to continue postcontract expiration, even if earli-
er changes also occurred during contract hiatuses pursuant to
the expired management-rights provision. E. I. du Pont de
Nemours, supra. In this case, there were no set criteria used to
decide which routes to sell. Kazer testified the decisions to sell
were based on what routes the distributors wanted to buy and
whether Respondent believed that they could handle the
routes.20

19 As previously stated, prior to Buckeye filing for bankruptcy,
Kazer testified that he was in discussions with Snyder Lance, the sec-
ond largest snack food manufacturer and distributor in the country,
about Buckeye’s 29 sales routes in Columbus, Sabina, and Cincinnati,
Ohio. Kazer explained that he contacted Snyder Lance about taking
over these routes “because of the job that Buckeye was doing.” (Tr.
358–359.) Kazer did not provide any more information as to what he
meant by that statement; however, it suggests that Respondent retains
certain control and authority over routes that are sold to independent
distributors to ensure that the routes are being properly handled.
20 The General Counsel and the Union further argue that the Union’s
failure to demand bargaining over the prior sales does not constitute
waiver because the 2016 sales were different, largely because they were
located in and around Dayton, and Respondent had not sold Dayton
routes in the past. The Union asserts that Routes 102, 104, 122, and
131 were some of the more profitable routes, unlike the routes sold in
the past. The Union believes that part of the reason these routes were
more profitable was because of their proximity to the Dayton distribu-
tion center, which reduced the transportation costs associated with
those routes, as compared to the other routes sold that were located in
outlying areas. The General Counsel and the Union argue that because
of these differences, and the fact that Respondent never sold Dayton
routes before, the Union’s failure to bargain over the other routes is
irrelevant to whether they clearly and unmistakably waived the routes
at issue. I need not address this contention, because I have concluded
Respondent has failed to establish a clear and unmistakable waiver.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Regardless, I find that Respondent’s waiver arguments,
whether based on the management-rights clause in the expired
contract, the arbitration decision which relied upon the man-
agement-rights clause, or the past practice that developed pur-
suant to the management-rights clause or arbitration decision,
all fail under current Board precedent. As such, I find Re-
spondent had a statutory obligation to bargain with the Union
over the decision to sell the four routes at issue, and its failure
to do so violates Section 8(a)(5) and (1) of the Act.
D. Respondent Had an Obligation to Provide the Union with
the Information Requested on August 31, 2016
The General Counsel contends that Respondent had an obli-
gation to provide the Union with the information it requested
on August 31 related to the sales of routes at issue. It is well
settled that an employer’s duty to bargain collectively under
Section 8(a)(5) of the Act includes the duty to supply requested
information to a union that is the collective-bargaining repre-
sentative of the employer’s employees if the requested infor-
mation is relevant and reasonably necessary to the union’s per-
formance of its responsibilities. NLRB v. Acme Industrial Co.,
385 U.S. 432, 435–436 (1967); NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956); Detroit Edison Co. v. NLRB, 440 U.S. 301
(1979). This duty is not limited to contract negotiations but
extends to requests made during the term of the contract for
information relevant to and necessary for contract administra-
tion and grievance processing. Beth Abraham Health Services,
332 NLRB 1234 (2000). The standard for determining the rele-
vancy of requested information is a liberal one and it is neces-
sary only to establish “the probability that the desired infor-
mation is relevant, and that it would be of use to the union in
carrying out its statutory duties and responsibilities.” Id. at 437.
See also Leland Stanford Junior University, 262 NLRB 136,
139 (1982), and cases cited therein. Therefore, the information
must have some bearing on the issue between the parties but
does not have to be dispositive. Kaleida Health, Inc., 356
NLRB 1373, 1377 (2011).
Where the union's request is for information pertaining to
employees in the bargaining unit, that information is presump-
tively relevant and the Respondent must provide the infor-
mation. However, where the information requested is not pre-
sumptively relevant to the union's performance as the collec-
tive-bargaining representative, the burden is on the union to
demonstrate the relevance of the information requested. Dis-
neyland Park, 350 NLRB 1256, 1257–1258 (2007). Where the
requested information pertains to matters outside the bargaining
unit and is not presumptively relevant, the information must be
provided if the surrounding circumstances put the employer on
notice as to the relevance of the information or if the union
shows why the information is relevant. National Extrusion &
Mfg. Co., 357 NLRB 127 (2011). Where a showing of rele-
vance is required because the request concerns nonunit matters,
the burden is “not exceptionally heavy.” Shoppers Food Ware-
house, 315 NLRB 258, 259 (1994). This burden is satisfied
when the union demonstrates a reasonable belief, supported by
objective evidence, that the requested information is relevant.
Disneyland Park, supra at 1258.
The Board has held that information requested pertaining to
subcontracting agreements, even if it relates to the bargaining
unit employees’ terms and conditions of employment, is not
presumptively relevant, and therefore a union seeking such
information must demonstrate its relevance. Disneyland Park,
supra at 1258. Specifically, on the subject of subcontracting
situations, the Board in Disneyland Park held that a broad, dis-
covery-type standard is utilized by the Board in determining the
relevance of requested information, and that potential or proba-
ble relevance is sufficient to give rise to an employer’s obliga-
tion to provide information. Id. In that regard, in Disneyland
Park, the Board held that to demonstrate relevance, the General
Counsel must present evidence either (1) that the union demon-
strated relevance of the nonunit information, or (2) that the
relevance of the information should have been apparent to the
employer under the circumstances. Disneyland Park, supra at
1258; Absent such a showing, the employer is not obligated to
provide such requested information. The Board has also held
that “[t]he union’s explanation of relevance must be made with
some precision; and a generalized, conclusory explanation is
insufficient to trigger an obligation to supply information.”
Disneyland Park, supra at 1258 fn. 5; Island Creek Coal, 292
NLRB 480, 490 fn. 19 (1989); see also Schrock Cabinet Co.,
339 NLRB 182 fn. 6 (2003).
In its August 31 letter demanding to bargain, the Union dis-
puted Respondent’s claims that Arbitrator Paolucci’s decision
gave it the authority to sell the routes at issue. The Union dis-
tinguished that case from the known facts about the routes at
issue. The Union stated in this letter that in order facilitate
bargaining, particularly in light of Respondent’s reliance on the
past arbitration decision which largely hinged on route profita-
bility, the Union requested the following: (1) All documents
that demonstrate the profitability of all of the Company’s routes
for the period from September 1, 2014 through August 1, 2016
so comparison can be made as to the profitability of all the
routes on Route No. 104 and Route No. 122; (2) A copy of the
agreement between Mike-Sell’s and the entity to whom Route
No. 104 and Route No. 122 is scheduled to be sold; (3) A de-
scription of how Mike-Sell’s product is to be received by the
entity to whom [R]oute No. 104 and Route No. 122 is sched-
uled to be sold; and (4) A copy of all correspondence, including
electronic correspondence, between Mike-Sell’s in the entity to
whom Route No. 104 and Route No. 122 is scheduled to be
sold from the date of the first such correspondence until August
29, 2016. Based on the wording of the letter, and the context in
which it was sent, I find that the Union demonstrated the rele-
vance of the information request, or that the relevance of the
information should have been apparent under the circumstanc-
es. As such, Respondent’s failure to provide the requested
information violates Section 8(a)(5) and (1) of the Act.
E. The Allegation That Respondent Failed to Bargain with the
Union Regarding the Sale of the Company Vehicles to the In-
dependent Distributors is Either Abandoned or Barred by Sec-
tion 10(b) of the Act
At the hearing, the General Counsel amended the complaint
to include allegations that Respondent violated Section 8(a)(5)
and (1) of the Act when it sold the delivery trucks to independ-
ent distributors. The parties entered into stipulations limiting
MIKE-SELL’S POTATO CHIP CO. 15
this allegation to Respondent’s sale of a delivery truck to inde-
pendent distributor Lisa Krupp’s company BLM Distributing
LLC on around September 4, 2016; and Respondent’s sale of a
delivery truck to independent distributor Charles Morris’s com-
pany Big TMT Enterprize, LLC on September 11, 2016. (Tr.
222.)
An employer has a duty to bargain with the representative of
its employees prior to making any changes in wages, hours or
other working conditions if the change is a “material, substan-
tial and a significant” one affecting the bargaining unit’s terms
and conditions of employment, and the General Counsel bears
the burden of establishing that the change was material, sub-
stantial and significant. Central Telephone Co. of Texas, 343
NLRB 987, 1000 (2004). In this case, the Counsel for General
Counsel completely failed to address this allegation in her
posthearing brief. Similarly, the Union failed to present any
argument or authority in support of this allegation. Thus, the
allegation appears to have been abandoned. In any event, the
General Counsel failed to carry the burden of proof and persua-
sion.
Even if the General Counsel had established the sales to be
unlawful, there is the issue of whether the allegation was time-
ly. As indicated above, Respondent contends the allegation
over the sale of the vehicles is barred under Section 10(b) of the
Act. Section 10(b) of the Act provides, in pertinent part, “[t]hat
no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge
with the Board.” It is well established that the 10(b) limitations
period does not begin to run “until the charging party is on
‘clear and unequivocal notice,’ either actual or constructive, of
a violation of the Act.” Ohio & Vicinity Regional Council of
Carpenters (The Schaefer Group, Inc.), 344 NLRB 366, 367
(2005) (citation omitted). Under this standard, adequate notice
will be found where the conduct was sufficiently “open and
obvious to provide clear notice” to the charging party. Broad-
way Volkswagen, 342 NLRB 1244, 1246 (2004), enfd. sub
nom. East Bay Automotive Council v. NLRB, 483 F.3d 628 (9th
Cir. 2007)), or where the charging party was “on notice of facts
that reasonably engendered suspicion that an unfair labor prac-
tice had occurred,” and could have discovered the violation by
exercising reasonable diligence. Phoenix Transit System, 335
NLRB 1263 fn. 2 (2001). See also St. George Warehouse, 341
NLRB 905, 905 (2004) (“In determining whether a party was
on constructive notice, the inquiry is whether that party should
have become aware of a violation in the exercise of reasonable
diligence.”). Respondent, in this case, shoulders the burden in
establishing this affirmative defense. Broadway Volkswagen,
supra.
On August 29, 2016, Respondent sent the Union a letter stat-
ing that Respondent will be eliminating two positions through
the sale of Route 104 and Route 122, effective September 4,
2016. Respondent noted that the affected drivers (Gerald
Shimmer #122 and Jerry Lake #104) would have an opportuni-
ty to rebid on September 1, 2016. On August 30, 2016, Gerald
Shimmer informed union steward Rick Vance that he was told
that his delivery vehicle was being sold, and that he (Shimmer)
needed to unload his truck and use a spare vehicle for the last
few days of his route. (Tr. 114–115). I find the timing of these
notifications was sufficient to put the Union “on notice of facts
that reasonably engendered suspicion that an unfair labor prac-
tice had occurred” and that the Union could have discovered
whether there had been a violation “by exercising reasonable
diligence.” Despite this notification, the Union failed to exer-
cise reasonable diligence to determine whether the sale of this
vehicle, or any other vehicles, at or around the time these two
routes were sold constituted a violation. Consequently, I find
that the allegation was filed more than 6 months after the Union
had constructive notice of the alleged violations, and, therefore,
should be dismissed as untimely.
CONCLUSIONS OF LAW
1. Respondent, Mike-Sell’s Potato Chip Company, is an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union, International Brotherhood of Teamsters
(IBT), General Truck Drivers, Warehousemen, Helpers, Sales
and Service, and Casino Employees, Teamsters Local Union
No. 957, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union is the certified collective-bargaining repre-
sentative for the following unit of Respondent’s employees:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s]
Dayton Plant, Sales Division and at [Respondent’s] Sales
Branch in Cincinnati, Columbus, Greenville, Sabina and
Springfield, Ohio and all over the road drivers employed by
[Respondent], but excluding all supervisors, security guards,
and office clerical employees employed by [Respondent].
4. Respondent has violated Section 8(a)(5) and (1) of the
Act since July 2016 by failing to give the Union notice and an
opportunity to bargain about its decision to unilaterally subcon-
tract bargaining unit work to others outside the bargaining unit;
and by failing to provide the Union information requested on
August 31, 2016, that is relevant and necessary to its role as
collective-bargaining representative.
5. By this conduct Respondent has engaged in unfair labor
practices affecting commerce within the meaning Section 2(6)
and (7) of the Act.
6. Respondent has not violated the Act except as set forth
above.
7. I recommend dismissing that portion of the amended
complaint which alleges that the Respondent violated Section
8(a)(5) and (1) of the Act by failing or refusing to bargain with
the Union before unilaterally selling the delivery vehicles.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, it is ordered to cease and desist therefrom
and to take certain affirmative action designed to effectuate the
policies of the Act. Affirmatively, Respondent shall, upon
request from the Union, rescind the sales of Routes 102, 104,
122, and 131. Respondent shall, upon request, bargain with the
Union regarding the decision to subcontract or sell company
sales routes. Respondent shall make any employees whole,
with interest, for any loss of earnings resulting from Respond-
ent’s unilateral subcontracting of bargaining unit work associ-
ated with the sale of Routes 102, 104, 122, and 131 to inde-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
pendent distributors. The Respondent will compensate employ-
ees for any adverse tax consequences for receiving lump-sum
backpay awards by payment to each employee of the amount of
excess tax liability owed, and will file a report with the Social
Security Administration allocating the backpay awards to the
appropriate calendar quarters for each employee. The Respond-
ent shall provide the Union with the information requested in
its August 31, 2016 information request.
Respondent shall post an appropriate informational notice, as
described in the attached Appendix. This notice shall be posted
at the Respondent’s Dayton facility wherever the notices to
employees are regularly posted for 60 days without anything
covering it up or defacing its contents. In addition to physical
posting of paper notices, notices shall be distributed electroni-
cally, such as by email, posting on an intranet or an internet
site, and/or other electronic means, if the Respondent customar-
ily communicates with its employees by such means. In the
event that, during the pendency of these proceedings Respond-
ent has gone out of business or closed the facility involved in
these proceedings, Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondent at any time since
July 11, 2016. When the notice is issued to Respondent, it shall
sign it or otherwise notify Region 9 of the Board what action it
will take with respect to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
Respondent, Mike-Sell’s Potato Chip Company, at its Day-
ton, Ohio facilities, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing or refusing to bargain with Union is the designat-
ed collective-bargaining representative of the following bar-
gaining unit of the employees regarding their wages, hours, and
other terms and conditions of employment:
[A]ll Sales Drivers, and Extra Sales Drivers at [Respondent’s]
Dayton Plant, Sales Division and at [Respondent’s] Sales
Branch in Cincinnati, Columbus, Greenville, Sabina and
Springfield, Ohio and all over the road drivers employed by
[Respondent], but excluding all supervisors, security guards,
and office clerical employees employed by [Respondent].
(b) Making unilateral changes to wages, hours, or other
terms and conditions of employment of the bargaining unit
employees without first providing the Union with notice and an
opportunity to bargain, including, but not limited to, the sub-
contracting of bargaining unit work through the sale of compa-
ny sales routes.
(c) Failing or refusing to provide the Union with requested
information, such as the Information requested in the Union’s
August 31, 2016 information request that is relevant and neces-

21 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
sary to the Union’s role as collective-bargaining representative.
(d) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights listed above.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Provide the Union with notice and an opportunity to bar-
gain before unilaterally making changes to wages, hours, or
other terms and conditions of employment of bargaining unit
employees, including, but not limited to, the subcontracting of
bargaining unit work through the sale of company sales routes.
(b) Upon request from the Union, rescind the sales of Routes
102, 104, 122, and 131 to independent distributors.
(c) Make affected employees whole, with interest, for any
loss of earnings resulting from the subcontracting of unit work
through the sale of Routes 102, 104, 122, and 131 to independ-
ent distributor, less any net interim earnings, plus interest, plus
reasonable search-for-work and interim employment expenses.
(d) Compensate affected employees for any adverse tax con-
sequences for receiving lump-sum backpay awards by payment
to each employee of the amount of excess tax liability, and file
a report with the Social Security Administration allocating the
backpay awards to the appropriate calendar quarters for each
employee.
(e) Within 14 days after service by the Region, post at its fa-
cilities in Dayton, Ohio copies of the attached notice marked
Appendix A.22 Copies of the notice, on forms provided by the
Regional Director for Region 9 after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places throughout its Dayton, Ohio facility, including
all places where notices to employees are customarily posted.
In addition to physical posting of paper notices, the notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its employees
by such means. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has closed cer-
tain facilities involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees employed
by the Respondent at any time since July 11, 2016.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C., July 25, 2017.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD

22 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MIKE-SELL’S POTATO CHIP CO. 17
An Agency of the United States Government
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT do anything to prevent you from exercising the
above rights.
WE WILL NOT fail or refuse to bargain in good faith with In-
ternational Brotherhood of Teamsters (IBT), General Truck
Drivers, Warehousemen, Helpers, Sales, and Service, and Casi-
no Employees, Teamsters Local Union No. 957 (Union) as the
exclusive collective-bargaining representative of our employees
in the following appropriate unit:
All sales drivers, and extra sales drivers at the [Respondent’s]
Dayton Plant, Sales Division and at the [Respondent’s] Sales
Branch in Cincinnati, Columbus, Greenville, Sabina and
Springfield, Ohio and all over-the-road drivers employed by
the [Respondent], but excluding all supervisors, security
guards, and office clerical employees employed by the [Re-
spondent].
WE WILL NOT refuse to meet and bargain in good faith with
your Union over any proposed changes in wages, hours, and
working conditions before putting such changes into effect.
WE WILL NOT change your terms and conditions of employ-
ment by unilaterally selling our routes without notification to
the Union or affording the Union an opportunity to bargain
regarding these decisions.
WE WILL NOT refuse to provide the Union with information
that is relevant and necessary to its representational duties.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL upon request, bargain in good faith with the Union
as the exclusive collective-bargaining representative of our unit
employees about the sale of Routes 102, 104, 122 and #131.
WE WILL if requested by the Union, rescind the sales of our
Ohio Routes 102, 104, 122, and 131 that we made without bar-
gaining with the Union and assign those routes to unit employ-
ees.
WE WILL pay you for the wages and other benefits lost be-
cause of the sales of our Ohio Routes 102, 104, 122, and 131
that we made without bargaining with the Union, less any net
interim earnings, plus interest, plus reasonable search-for-work
and interim employment expenses.
WE WILL compensate employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award, and
WE WILL file with the Regional Director for Region 9, within 21
days of the date the amount of backpay is fixed by agreement, a
report allocation the backpay award to the appropriate calendar
year(s).
WE WILL promptly furnish the Union with the following in-
formation requested in its August 29, 2016 information request
letter: (1) documents showing the profitability of Respondent’s
routes for the period September 1, 2014 through August 1,
2016, so a comparison could be made between all of the routes
to Routes 104 and 122; (2) a copy of the agreement between
Respondent and the entity who is scheduled to purchase these
routes; (3) a description of how Respondent’s product is to be
received by the entities purchasing these routes; and, (4) a copy
of all correspondence between Respondent and the entity who
is scheduled to purchase these routes.
MIKE-SELL’S POTATO CHIP COMPANY
The Administrative Law Judge’s decision can be found at
https://www.nlrb.gov/case/09-CA-184215 or by using the QR
code below. Alternatively, you can obtain a copy of the deci-
sion from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E. Washington D.C. 20570, or by
calling (202) 273-1940.